At the OPC we ourselves have not reached a conclusion on this point. We have issued a discussion paper. We have sought comments by stakeholders, and we are in the process of determining what our position should be. As I mentioned in my opening remarks, some of the submissions we have received are very critical and signal that, in Canada, the constitutional protection of freedom of expression may be slightly different from that in Europe and may lead us to a different outcome from the one in Europe. I'm not saying this is right or wrong. I'm saying this is a credible argument that needs to be seriously considered.
Beyond constitutional law we also heard from stakeholders that the way in which PIPEDA is currently constructed may not be consistent with a right to be forgotten. Particularly when search engines conduct search activities, they may not be governed by PIPEDA, because PIPEDA is consent-based and search engines do not require consent before they put results on their website.
So both as a matter of constitutional law, freedom of expression, and as a matter of statute law there is a gap as to whether PIPEDA applies. Should we close the gap? That's where I say it's very uncertain. Europe will require essential equivalency. It doesn't mean sameness. Presumably when they assess our laws they will consider differences in constitutional protections, for instance, on freedom of expression. So I think we should look at this question of the right to be forgotten. It is certainly consistent with privacy notions generally that information should not sit on servers or continue to be retained by organizations beyond the period when it's necessary. So should we look for exactly the same thing? Probably not. We should aim to go towards a right to be forgotten, but I don't think we need to reach the same place.