About a year ago on ITBusiness.ca, I examined the question whether we had the right to be forgotten. Then, It seemed that individual’s ability to be forgotten on the Internet was still up in the air. Now, it may actually be a right in Europe, and we are seeing more and more what that might look like here.

A recent decision by the EU courts, instructed Google to not display personal information that is “inadequate, irrelevant … or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.” The decision itself centred around a Spanish man objecting to the search engine linking his name to a decade-old article about his house being repossessed.

What’s interesting in this case is that the newspaper’s right to publish this information wasn’t in question, nor was it decided that keeping that article online was inappropriate. The objection was to Google linking to the ‘out dated’ material.  Last month I wrote on the ‘legal identity crisis’ search engines faced, which is coming into focus here. American courts have been constructing search engines as a mix between magazines, who have editorial free speech in what they do and don’t ‘publish’ by linking to, and library indexes, who simply point to other’s speech, and aren’t making publishing decisions at all.  But the more recent ruling by the EU seems to address search engines, Google in particular, more as a function of the Internet.

The EU case has prompted renewed discussion of the “right to be forgotten” in North America. While nothing is written in stone when it comes to the Internet and the law, U.S. legislation like the Communications Decency Act immunizes search engines like Google from online defamation complaints. With America going so far as to allow Google to link to provably false information, it seems unlikely they will stop them from linking to outdated pages.

Canada’s future is less clear. Canadian law doesn’t immunize websites such as Google or Yelp from liability from online defamation, and the sites already have (poorly advertised) processes in place to accommodate takedown requests for defamatory material. It is in the realm of possibility that such a decision could make its way through the courts in Canada, and we may eventually see the right to be forgotten.

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