Is There a 'Right to be Forgotten' in Canada's Personal Information Protection and Electronic Documents Act (PIPEDA)?

Authors

Michael Rosenstock

Keywords

PIPEDA, Right to Be Forgotten

Abstract

In this paper, I argue that PIPEDA could support a version of the right to be forgotten, subject to three important caveats. First, for search engines to meet the threshold applicability test under PIPEDA, their activities (i.e., crawling, indexing, organizing, etc.) must constitute the ‘‘collection, use or disclosure” of personal information. Ascribing such a role to search engines in information dissemination would likely require a court to distinguish the activities of search engines from hyperlinks on websites, which the Supreme Court in Crookes v. Newton determined did not involve control over content. Second, PIPEDA’s ‘‘all-or-nothing approach” means that if search engines met the threshold test, a series of obligations would be imposed on them regardless of their practicality, suitability or intelligibility. One of these obligations — to which exemptions are limited — would require search engines to obtain (and maintain) consent from individuals to collect, use or disclose their personal information. A court may react to the significant challenges of ‘‘fitting” PIPEDA to search engines by rejecting the application of PIPEDA at the threshold stage. Third, as the breadth of the right to be forgotten articulated in Google Spain would likely infringe the ‘‘core” of Canadian Charter protections for freedom of expression, one would expect any right recognized under PIPEDA to be far narrower than that under the Directive.

This paper proceeds as follows: Section 2 describes and contrasts the EU Directive and PIPEDA; Section 3 reviews and critically assesses Google Spain; Section 4 examines whether a right to be forgotten could be discovered in PIPEDA; Section 5 concludes.

Recommended Citation

Michael Rosenstock, "Is There a 'Right to be Forgotten' in Canada's Personal Information Protection and Electronic Documents Act (PIPEDA)?" (2016) 14:1 CJLT.