The internet never forgets. But should it? A Battle is raging in Canada and Worldwide

A quick Google search of her name, one woman complained, brought up court cases that laid bare her medical information.

Another said her daughter was being identified in online court documents as “a sex worker.”

A mother worried her son might read an account of the bitter custody battle fought for him.

A former inmate said his official pardon had been rendered all but meaningless.

The four were among 49 Canadians who lodged complaints with the federal privacy commissioner between October 2013 and April 2016.All of them were angry that old court cases had suddenly started popping up in Google searches of their names.

What’s more, they said, the Romanian website that had posted the material — thus making it discoverable by Google’s search engine —was demanding money to take it down: It would cost them about $300 to be forgotten.

Welcome to the internet, circa 2017.

The web’s hive mind has a long memory — and a mean streak — which can be a serious problem for anyone trying to move past an ugly divorce, a criminal record, a bankruptcy or a foolish mistake. For years, officials turned a blind eye to the problem, declaring the web a wild and unruly frontier.

But now, two decades after the advent of Google (the domain google.com was registered onSept. 15, 1997), courts and regulators are increasingly asking the question: Should the internet’s cache of damaging personal data be made to disappear at some point? Or should it remain in place forever, burned onto the online presence of the once guilty like some kind of digital scarlet letter?

Those who argue for a best-before date call it “the right to be forgotten” and say it should be a fundamental tenet of the digital age.

But free speech advocates contend that enshrining the right in law will diminish the revolutionary power of the web by creating “black holes” where information can disappear.

“There are two competing interests at the heart of almost everything that goes on online,” says Montreal lawyer Allen Mendelsohn, an internet law specialist. “In the simplest terms: It’s your right to your reputation versus the other person’s right to freedom of expression.”

Europe and Argentina are among the jurisdictions that have already recognized an individual’s right to be forgotten.The issue has played out for years in Europe, where regulators are now wrestling with the thorny question of how to enforce removal orders on the transnational, shape-shifting web.

In May 2014, the European Union’s highest court ruled that Google must remove links to damaging personal information deemed inadequate, irrelevant or excessive.

The ruling — based on the complaint of a Spanish man who wanted Google to remove links to a 1998 news story about his bankruptcy —said search engines were data “controllers,” not just neutral conduits, and therefore had a responsibility to cleanse unfair and damaging information.

In its wake, Google received a deluge of requests for cache removals from EU residents: more than 735,000 people filled out the company’sdigital application form.It has since delisted 1.1 million search results inside the EU, according to the company’s public transparency report.

France’s data protection agency, however, said that wasn’t good enough, and it has ordered Google to censor those same links worldwide so that someone conducting a search in Canada, for instance, couldn’t find information unavailable in the EU. (Google Search uses different domains for different countries: Canada is http://www.google.ca, Germany is http://www.google.de, Spain is http://www.google.es, Australia is http://www.google.com.au, the U.S. is http://www.google.com.)

Google has challenged the order to France’s Conseil d’Etat, which in July referred the issue to the EU’s top court.

The company says the case has profound implications for the free flow of digital information.

“If French law applies globally, how long will it be until other countries – perhaps less open and democratic – start demanding that their laws regulating information likewise have global reach?” Google general counsel Kent Walker wrote in a recent blog post.

Information that is legal in one country, he said, is verboten in another: “Thailand outlaws insults to its king; Brazil outlaws negative campaigning in political elections; Turkey outlaws speeches that denigrates Ataturk or the Turkish nation.”

He warned that the case, if upheld, could trigger “a global race to the bottom.”

Google is already in an uncomfortable situation. By recognizing the right to be forgotten, European courts have handed the multinational the judge-like responsibility of weighing individual privacy rights against the public’s right to know.

Google officials have reviewed more than two million EU web addresses (URLs), and have decided to remove 56.9 per cent of them.

The company provides examples of the decisions it faces, but it does not set out hard and fast rules for removals, nor does it explain how its officials balance public versus private interests.

The Global Commission on Internet Governance, an independent think-tank led by former Swedish prime minister Carl Bildt, decried that state of affairs in a 2016 report: “Private companies — as opposed to courts and legislatures — are only accountable to their shareholders; they should not be the arbitrator on how to weigh fundamental rights and public interests.”

Courts around the world are now wrestling with issues raised by privacy on the internet, and Canada is no exception.

In January, the Federal Court of Canada issued a judgment that excoriated Sebastian Radulescu, the owner of the website Globe24h.com, as someone who “has essentially made a business of exploiting the privacy of individuals for profit.”

In 2012, Globe24h.com downloaded thousands of decisions from the Canadian Legal Information Institute (CanLII), a non-profit organization that offers access to decisions from Canadian courts and tribunals.

CanLII shields its database from search engines in keeping with guidelines published by the Canadian Judicial Council. (In 2005, the judicial council said that while internet publishing enhances the open-court principle, it also raises legitimate privacy and security concerns. Most Canadian courts follow the council’s guidelines, but not all: The Manitoba Court of Appeal, for instance, allows its judgments to be indexed by Google. Once indexed, the material is infinitely more accessible to the average web user.)

Globe24h.com circumvented the Canadian convention by conducting a bulk download of CanLII data and posting it to a company website. That made it discoverable by Google’s search engine. As a result, people searching an individual’s name —even if they were not looking for court records —would quickly find the cached legal documents.

In response to a flood of complaints, the Office of the Privacy Commissioner of Canada investigated.

Radulescu defended his website. He told the privacy commissioner that he was engaged in a “journalistic enterprise” to broaden the availability of Canadian legal decisions. His company didn’t create the documents, he argued, but simply amplified their distribution: “If courts do not want everyone to see (their decisions), why do they publish them online in the first place?” he asked.

In June 2015, the privacy commissioner issued a report that found that the website generated most of its revenue by collecting fees to remove the unwanted material. It recommended that Radulescu take down the Canadian content from his website.

But the Romanian flatly refused. So the case ended up in the Federal Court of Canada, which can add legal force to the privacy commissioner’s findings.

In his ruling earlier this year, Justice Richard Mosley concluded there was nothing journalistic about Radulescu’s business: “The evidence indicates that the respondent’s primary purpose is to incentivize individuals to pay to have their personal information removed from the website. There is no evidence that the respondent’s intention is to inform the public on matters of public interest.”

The judge ordered Radulescu to remove the documents, and awarded the anonymous complainant $5,000 in damages. Globe24h.com is now inoperative.

Some observers believe the decision represents the first major step toward establishing a court-sanctioned right to be forgotten in Canada.At the very least, says Ottawa-based lawyer Colin Lachance, it highlights the need for a national debate.

“It’s really time for a new national conversation about this,” said Lachance, CEO of the legal publisher, Compass, and former president of CanLII. “Personally, I’m of the view that case law should be open and free.”

Mendelsohn used to believe in a no-holds-barred internet, but tempered that view after years of trying to help people whose lives had been damaged by web posts.

“I used to think, ‘If it’s truthful information, why should it be removed or delisted?’” he says. “But having seen so many circumstances where individuals have real problems because of things on the internet, I’ve softened that stance a bit: I don’t think there should be some unlimited right to be forgotten where anything can be removed, but I do think something needs to be put in place. … There are a lot of competing interests that make it a very complicated situation. But there are significant problems with some of the stuff that’s easily discoverable through Google.”

Most people would agree with the notion that a doctor who committed serious malpractice, or someone who abused a child, should not have their internet footprints easily erased. But how long should lesser crimes be allowed to damage reputations online? What about allegations of cheating, adultery, bad food, poor service?

A handful U.S. websites — including The Dirty, Cheater Report and The Ripoff Report — routinely publish allegations that can damage the reputations of ordinary people and small businesses. The websites post mostly unverified accusations and complaints.

“They hide behind certain American laws, and make it very hard to remove content,” says Mendelsohn. “It’s unfortunate, but there’s very little you can do except get active on the internet so that the item in question gets pushed down in the Google rankings.”

Sometimes, business owners and individuals turn to online reputation managers, such as Reputation.ca, to help them bury an offensive post or a bad review. Restaurants, hotels and retailers can be devastated by a single, cranky customer who takes to social media.

Reputation.ca has a number of strategies to repair an online reputation. First, it appeals directly to the person or group that posted the material. If it’s not possible to have the post removed, the firm employs what it calls a “suppression” strategy: It develops 20 or 30 pieces of factual content about a client and publishes them to the web. Optimized for search engine algorithms, the material can displace negative posts on Google’s search index.

“When you consider how easy it is to destroy someone’s reputation, or cause them a lot of financial and social harm, it’s kind of ridiculous,” says Matt Earle, founder and president of Reputation.ca. “It’s not a just situation right now.”

The Supreme Court of Canada recently entered the debate.

The country’s highest courtissued a judgment in late June that upheld a worldwide removal order against Google. The ruling has broad implications for content policing on the web: specifically, whether search engine companies can be ordered to suppress search results in other countries. (It’s the same issue that’s now before EU’s top court.)

The Canadian case dealt with a commercial interest rather than an individual’s privacy, but internet lawyers believe it will inform the debate on the right to be forgotten. Explains Mendelsohn:“For a right to be forgotten to meaningfully exist, you must have the ability to say that Google must remove something.”

The case involved Equustek Solutions Inc., a Burnaby, B.C.-based firm that makes networking devices to improve industrial automation.

In 2012, Equustek won a court order that prevented a Vancouver-based competitor, Datalink Technologies Gateways, from selling counterfeit versions of its products.Datalink, however, closed its Vancouver office and continued to operate as a virtual company through an ever-expanding series of websites.

Equustek appealed to Google for help in dealing with its scofflaw competitor. The California-based company voluntarily removed 345 web addresses from its list of search results on Google.ca to limit public access to Datalink.But Datalink simply moved its content to new web pages, and continued to sell products online — mostly to customers outside of Canada. Equustek lawyers described its pursuit of Datalink as an unhappy game of “Whac-A-Mole.”

As a result, the firm went back to court, seeking a broader injunction that would order Google to block all search results that linked to Datalink’s websites worldwide.

Google lawyers said the order went much too far. They argued that a permanent, worldwide injunction would set a dangerous precedent, and undermine freedom of expression.

The lower court, however, sided with Equustek, ruling that an injunction with international force was the only practical way of protecting the company’s economic interests.The B.C. Court of Appeal upheld that ruling, and Google appealed to the Supreme Court of Canada, which heard the case in December.

In its written submissions, Google said the case, if upheld, opened the door to abuse by nations eager to control information. Other countries, it warned, could turn to similar international blocking orders to scrub the web of ideas they consider offensive. “Should Russia grant orders prohibiting Canadians from finding and reading websites that contain anti-Kremlin content?” Google lawyers asked.

The case attracted a host of interveners, including the Wikimedia Foundation, Human Rights Watch and the Canadian Civil Liberties Association.Wikimedia’s lawyers cautioned: “While this case relates to commercial speech, the court should be mindful of the fact that expression that is creative, educational, and informative will also come before courts around the world.”

In a 7-2 ruling, the Supreme Court upheld the worldwide de-indexing order against Google. It’s the first time that a nation’s highest court has upheld such a sweeping removal order against the search engine giant.

Writing for the majority, Justice Rosalie Abella said that although Google was not directly responsible for what happened to Equustek, it cannot be considered a simple bystander since, as a key internet gatekeeper, it “facilitated” that harm.

The judge noted that Canadian courts routinely grant international injunctions to deal with intellectual property and copyright infringements.

“The problem in this case is occurring online and globally,” the court said. “The internet has no borders — its natural habitat is global.”

Google on the front lines of search for answers in privacy wars
Google dominates the search engine market to such an extent that it’s regularly the focus of individual and government attempts to have information removed from the internet.

In the European Union, courts have ordered the company to remove links to damaging personal information deemed inadequate, irrelevant or excessive. In the past three years, Google has received more than 735,000 removal requests from EU residents.Among them:

In Germany, a teacher convicted of a minor crime more than a decade ago asked Google to remove search results that linked to an article about his conviction. Google complied;
In Italy, a woman requested that Google remove links to a decades-old article about her husband’s murder, which included her name. Google complied;
In Britain, a doctor requested Google remove more than 50 links to newspaper articles about a procedure that he botched. Google refused, removing only three links to pages that contained personal information; and
In Britain,a man asked Google to remove a link to an old news summary of a court decision about his conviction since he had been officially rehabilitated. Google complied.
According to the company’s public transparency report, Google has delisted 1.1 million search results in the EU by weighing the rights of the individual against the public’s interest in the content.

The company provides little insight into how it manages that juggling act, saying only that it considers many factors, including whether the content relates to the individual’s “professional life, a past crime, political office or position in public life.” It also considers whether the material was created by the individual requesting its removal, or by governments or journalists.

In the EU, Google’s online removal form explains: “When evaluating your request, we will look at whether the results include outdated information about you, as well as whether there’s a public interest in the information. For example, we may decline to remove certain information about financial scams, professional malpractice, criminal convictions or public conduct of government officials.”

Europeans who have their removal requests rejected can appeal to government privacy commissions and, ultimately, to the courts.

In France, the country’s highest administrative court, the Conseil d’Etat, will soon hear a case involving four applicants who had their removal requests rejected by both Google and France’s data protection agency.

The information at issue includes an explicit video that revealed an individual’s relationship with a public office holder; a news article related to the suicide of a Church of Scientology member; and articles related to a man’s conviction for sexually abusing children.

In Canada, Google will voluntarily remove “sensitive personal information” only under limited circumstances.

If web pages include personal medical records, information that can be used by fraudsters — e.g. signatures, credit card numbers, bank account or social insurance numbers — or unauthorized, sexually explicit images, Google will consider removals on a case-by-case basis.

In Canada, Google also acts upon court orders and government requests to remove information from blog posts, YouTube videos and search results.

In the first six months of 2016, Google received 56 official removal requests in Canada, and complied with the majority (69 per cent) of them.

According to Google’s transparency report for Canada, most of those removals involved defamation (45 per cent), privacy and security (29 per cent), fraud (13 per cent), copyright violations (five per cent) and violence (four per cent).

The report offered a handful of examples of Canadian removal requests. Among them:

In 2014, Google received a request from a man who had been acquitted of extortion for a plot that allegedly had ties to Hezbollah. He wanted a number of news articles delisted from search results of his name. Google refused for “reasons of public interest”;
In 2011, the federal government asked Google to remove a YouTube video of a Canadian citizen urinating on his passport and flushing it down the toilet. It refused; and
In 2009, an unnamed Canadian politician asked Google to remove a blog criticizing his policies. Google refused.
‘Right to be forgotten’ questions loom for news sites
Newspapers used to go out with the weekly trash — often wrapped in binder twine and stacked in great towers.

It meant that most stories (save for the ones taped to the fridge door) had a shelf life of a week or two. Anyone interested in reviewing old coverage had to scroll diligently through reels of library microfilm.

The internet, of course, has changed all that: Newspaper content can now live online for decades, searchable anywhere by anyone through Google or Bing.

Once disposable, newspapers have a new permanence. As a result, they’re increasingly the target of removal requests from people who want embarrassing or damaging stories sent to the online trash bin

The Citizen is no exception. “We actually got a slew during Bluesfest, people asking that pictures be taken down because they didn’t like being shown at a concert,” said Keith Bonnell, deputy editor of the Ottawa Citizen and Ottawa Sun.

The newspaper has received requests from paroled criminals seeking to expunge old stories; from business owners who don’t want their names or buildings associated with a crime report; and from people who, for whatever reason, want their names to disappear.

The newspaper’s policy is to remove only that content with legal or ethical problems. Articles with factual errors are corrected but not removed.

“We acknowledge there may be particular, extenuating circumstances but it is the exception rather than the rule that we would remove published content,” Bonnell said.

In the European Union, where the right to be forgotten has been recognized since 2014, most removal orders have been directed at search engines, the internet’s primary gatekeepers. But newspapers have also come under pressure.

Last year, the Belgian Supreme Court ordered the newspaper Le Soir to remove a doctor’s name from a November 1994 news article that was available online. The article described the doctor’s conviction for drunk driving in a fatal car accident. The court ruled that the doctor’s right to privacy more than two decades after the accident trumped the newspaper’s right to freedom of expression.

Also last year, Italy’s high court upheld a ruling that ordered an online newspaper, Primadanoi, to take down an offending article that was just two years old. The court endorsed a lower court ruling that said online news should have an expiry date “just like milk, yoghurt or a pint of ice cream.” (The story in question concerned a restaurant owner’s criminal case.)

Jenn Topper, communications director for the Reporters Committee for Freedom of the Press, said removal requests should be left to a newspaper’s editorial discretion. “Regulatory bodies shouldn’t be dictating that truthful, accurate information be removed,” she said.

Carleton University’s Randy Boswell said newspapers should be quick to correct or augment the public record, but must be wary of subtracting from it.

“We need to be careful about efforts by individuals, corporations and groups to expunge evidence of offensive behaviour from a news story or photo,” said Boswell, an associate professor at the university’s School of Journalism and Communication.

“History, including yesterday’s journalism, may provide an incomplete or inconvenient picture of the past, but the best response is to acknowledge those limitations … not to excise uncomfortable or even erroneous information from public memory.”

Boswell, who specializes in solving historical mysteries through newspaper sleuthing, said it can be uncomfortable to read 19th century papers describe Indigenous people, Jews or women. But he said that information, even though offensive, is critical to understanding a time and place.

“The same principle applies to things that happened last month,” he argued.



Ottawacitizen