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opinion

Peter Fleischer is Google’s Global Privacy Counsel. On April 4, he will be speaking at Striking the Balance, a symposium on privacy and expression hosted by the Canadian Journalism Foundation at The Globe and Mail.

Should Canada follow Europe and create a “right to be forgotten,” established by Europe’s top court in 2014? While recognizing the inherent conflict it presents with Canada’s own Charter of Rights and Freedoms, the Office of the Privacy Commissioner has proposed importing “right to be forgotten” to Canada. At Google, we have more than three years’ experience in trying to make it work in Europe. And we’ve learned a lot about the trade-offs between two competing goals: privacy versus the public’s right to know and find information online.

When you search online, there’s an assumption that you’ll get an instant answer, with the most relevant information. In Europe, however, search engines face a unique challenge – figuring out what information we must deliberately omit from our results.

In the past, we’ve restricted the removals we make from search to a very short list. It includes information deemed illegal by a court, such as defamation, pirated content (once we’re notified by the rights holder), malware, personal information such as bank details, and other things prohibited by local law (such as material that glorifies Nazism in Germany).

We’ve taken this approach because, as Article 19 of the Universal Declaration of Human Rights states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

In Europe, the court found that people have the right to ask for information to be removed from search results that include their names if it is “inadequate, irrelevant or no longer relevant, or excessive.” These are, of course, very vague and subjective guidelines. In deciding what to remove, search engines must also have regard to the public interest. The court also decided that search engines don’t qualify for a “journalistic exception.” This means that The Globe and Mail could have an article on its website about an individual that’s perfectly legal, but we might not legally be able to show links to it in our results when you search for that person’s name. It’s a bit like saying the book can stay in the library, it just cannot be included in the library’s card catalogue. Finally, the European court ordered the search engines themselves to be the arbiters of first instance, balancing these competing values. This is the model endorsed by Canada’s Privacy Commissioner.

For these reasons, we disagreed with the ruling in Europe. That said, we obviously respect the court’s authority and have been doing our best to comply responsibly. It’s a huge task: we’ve received more than 650,000 take-down requests, and reviewed more than 2,400,000 webpages since the European court’s decision. We have a team of people individually reviewing each application, in most cases with limited information and context.

The examples we’ve seen so far highlight the difficult value judgments search engines and European society now face: former politicians wanting posts removed that criticize their policies in office; convicted criminals asking for articles about their crimes to be deleted; professionals such as architects and doctors asking for bad reviews to be delisted; people wanting to have comments removed that they themselves wrote (and perhaps now regret). In each case, someone wants the information hidden, while others might argue it should be out in the open.

When it comes to determining what’s in the the public interest, we’re taking into account a number of factors. These include whether: the information relates to a politician, celebrity or other public figure; whether the material comes from a reputable news source and how recent it is; whether it involves political speech; questions of professional conduct that might be relevant to consumers; the involvement of criminal convictions that are not yet “spent”; and whether the information is being published by a government. But these will always be difficult and debatable judgments and, accordingly, they’ve had to be argued and defined through court action in Europe, and continue to be.

We’re also doing our best to be transparent about removals: for example, we’re informing websites when one of their pages has been removed. But we cannot be specific about why we have removed the information because that might violate the individual’s privacy rights under the European court’s decision.

It’s hard not to empathize with some of the requests we’ve seen in Europe — from the man who asked that we not show a news article saying he had been questioned in connection with a crime (he’s able to demonstrate that he was never charged) to a woman named in a newspaper article as the victim of a crime.

But as the Privacy Commissioner considers translating the European model to Canada, it will also have to confront the challenges of how to balance one person’s right to privacy with another’s right to know, and whether the European “right to be forgotten” would be consistent with the rights outlined in Canada’s Charter of Rights and Freedoms, which assures Canadians “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”

It’s a complex issue, with no easy answers. So a robust debate is both welcome and necessary. On this issue at least, no search engine has the perfect answer.