2.2 The Right to Be Forgotten
The right to be forgotten (RTBF) raises interesting issues in Canada and its status
unclear. In 2018 the OPC took the public position
45 that PIPEDA could be
interpreted to provide not just a right of de-indexing but a right of erasure in
appropriate circumstances. However, this view has yet to be tested. In A.T.
v. Globe24hr.com,
46 the Federal Court ordered a Romanian company to remove
Canadian court decisions containing the personal information of Canadians from its
website. The site operator had been charging fees to anyone seeking to have their
information removed. While the outcome sought to protect individuals’ reputations
and privacy in a manner similar to the RTBF, it is not strictly a RTBF case since the
order was premised on a breach of the rules regarding collection, use and disclosure.
In RTBF cases, the content at issue may be legitimately posted online and the issue is
whether the individual has a right to have it either removed or de-indexed.
On September 27, 2018 the Commissioner announced in the OPC’s Annual
Report to Parliament that it was referring to Federal Court a complaint raising
RTBF issues.
47 This litigation may provide some insight into the extent to which
PIPEDA’s current provisions support a RTBF.
2.3 Unsolicited Commercial Messages
On July 1, 2014 anti-spam legislation took effect in Canada.
48 The statute, known by
the acronym CASL (Canadian anti-spam legislation) amended four federal statutes,
including PIPEDA to provide a regime for dealing with unsolicited commercial
communications. The regime was further fleshed out with the enactment of the
Electronic Commerce Protection Regulations.
49 The general purpose of the antispam regime is “to encourage the growth of electronic commerce by ensuring
confidence and trust in the on-line marketplace”.
50 The CASL applies to all
45 Privacy Commissioner of Canada (2018b) Draft OPC Position on Online Reputation.
46 2017 FC 114.
47 Privacy Commissioner of Canada (2018d) Trust but Verify, pp. 13–14.
48 An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain
activities that discourage reliance on electronic means of carrying out commercial activities, and to
amend the Canadian Radio-television and Telecommunications Commission Act, the Competition
Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act , S.C. 2010, c. 23. (“Canada’s Anti-Spam Legislation” or “CASL”). Note that the law was
enacted in 2010, but its coming into effect was delayed in part to ensure that necessary regulations
were in place.
49 SOR/2013-221.
50 Regulatory Impact Analysis Statement (2013) s. 3.
62
T. Scassa
The right to be forgotten (RTBF) raises interesting issues in Canada and its status
unclear. In 2018 the OPC took the public position
45 that PIPEDA could be
interpreted to provide not just a right of de-indexing but a right of erasure in
appropriate circumstances. However, this view has yet to be tested. In A.T.
v. Globe24hr.com,
46 the Federal Court ordered a Romanian company to remove
Canadian court decisions containing the personal information of Canadians from its
website. The site operator had been charging fees to anyone seeking to have their
information removed. While the outcome sought to protect individuals’ reputations
and privacy in a manner similar to the RTBF, it is not strictly a RTBF case since the
order was premised on a breach of the rules regarding collection, use and disclosure.
In RTBF cases, the content at issue may be legitimately posted online and the issue is
whether the individual has a right to have it either removed or de-indexed.
On September 27, 2018 the Commissioner announced in the OPC’s Annual
Report to Parliament that it was referring to Federal Court a complaint raising
RTBF issues.
47 This litigation may provide some insight into the extent to which
PIPEDA’s current provisions support a RTBF.
2.3 Unsolicited Commercial Messages
On July 1, 2014 anti-spam legislation took effect in Canada.
48 The statute, known by
the acronym CASL (Canadian anti-spam legislation) amended four federal statutes,
including PIPEDA to provide a regime for dealing with unsolicited commercial
communications. The regime was further fleshed out with the enactment of the
Electronic Commerce Protection Regulations.
49 The general purpose of the antispam regime is “to encourage the growth of electronic commerce by ensuring
confidence and trust in the on-line marketplace”.
50 The CASL applies to all
45 Privacy Commissioner of Canada (2018b) Draft OPC Position on Online Reputation.
46 2017 FC 114.
47 Privacy Commissioner of Canada (2018d) Trust but Verify, pp. 13–14.
48 An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain
activities that discourage reliance on electronic means of carrying out commercial activities, and to
amend the Canadian Radio-television and Telecommunications Commission Act, the Competition
Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act , S.C. 2010, c. 23. (“Canada’s Anti-Spam Legislation” or “CASL”). Note that the law was
enacted in 2010, but its coming into effect was delayed in part to ensure that necessary regulations
were in place.
49 SOR/2013-221.
50 Regulatory Impact Analysis Statement (2013) s. 3.
62
T. Scassa