Information & Ethics Committee on April 6th, 2017

[Raj Saini, Liberal, Kitchener Centre, ON]

Mr. Cameron, I want to ask you a quick question specifically with regard to your remarks on the Globe24h case. You wrote that the case had “the potential to introduce in Canada a right similar to the 'right to be forgotten' which has emerged in the EU”. Can you highlight for the committee how you feel that might be a precedent? Especially with the GDPR new rules coming out in 2018, do you think that's something we should formulate in Canada for adequacy?

[Alex Cameron]

I think there are two questions there. First, is it a topic to be addressed in the legislation? Second, what are the courts doing?

Maybe I'll address the legislative piece first. Frankly, I haven't thought about it in the same terms that Ms. Backman has in respect of a potential limitation to children in particular, but there's no question with regard to the sentiments expressed in terms of the concept. There's not a person among us, of course, who hasn't done things in their past that they may have been deeply embarrassed about or may regret, or who hasn't made mistakes. It's an important issue when someone is forever haunted by easy access to the records of those things.

That is a unique phenomenon that has emerged in the online context in particular. It's not new in the sense that there have alway been issues of skeletons in the closet and things that could be brought up, but it's a very challenging one from a legislative perspective. I don't have a particular perspective on whether or not it's a necessary component of an amended PIPEDA, but it's certainly one that merits a close look.

In terms of what the courts are doing—

[The Vice-Chair, NDP, Daniel Blaikie]

I'm sorry, Mr. Cameron, I have to jump in here. The seven minutes are up, and I want to make sure that other committee members get their opportunity to pose questions.

[Alex Cameron]

Of course. No problem.

[The Vice-Chair, NDP, Daniel Blaikie]

We'll proceed now to Mr. Jeneroux.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Perfect. Thank you very much.

Thank you, everybody, for being here today. Thank you for your patience while we voted.

I'd like to come back to some of the comments that my colleague Mr. Saini was asking you, Ms. Backman, but I'll also open it up to you, Ms. Reynolds, and to you, Mr. Cameron, on some of the stuff that you started talking about.

First, Ms. Backman, you used “right to be forgotten” and “right to erasure” almost interchangeably, it seemed to me. Going back to your point, what is also clear to a lot of us in the room is that if there are certain things in our past that we feel should be erased, somebody else might not feel that way. Particularly for members of Parliament, in running for public office there may be certain things that other people may find relevant to voting that maybe aren't necessarily what we would like to put out there—myself excluded completely, though.

[Voices]

Oh, oh!

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

I do want to get your comments on how we're struggling with that—

[Paige Backman]

Sure.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

—because I believe that the Privacy Commissioner is also going through a similar struggle, if you will. He's committed to putting forward a position on this, but it's going to be after our study is done. Hopefully you will be able to provide some insight, and I will also open it up to the other two witnesses.

[Paige Backman]

Thank you. I'll take maybe just a minute or two, and then Ms. Reynolds can respond.

It's a good question. It is a struggle to deal with that, which is one of the reasons that I limited my submission to it being applicable to minors. Let's think of the instances in which this may be relevant, such as a criminal record or some sort of a breach of law. Those are not erased simply by taking it offline, so, if you have a criminal past, that will still be accessible. It's just not there for the entire public to see.

What we're seeing more of, or where we're seeing the pressure point, is with poor judgment, which we all experienced as children, whether it's photos from a party with alcohol...which can really have an impact on your right to employment or to getting into educational institutions.

For me, the balance is that I understand that struggle and I think it's a legitimate struggle. I think it becomes more relevant once you become more able to correct your behaviour as an adult.

A child has very limited ability to really understand those consequences and, therefore, to correct the behaviour before this happens. The more significant issues that a child would be involved with, which you would want to know about legitimately, are going to be in a record somewhere. This is simply the additional bad judgment, which we all experience, that is just going to be removed from online.

I think given that this is in the context of a commercial activity, the balance really weighs more in favour of protecting the minor, letting them make those mistakes, and then allowing them to move on.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

I guess there are degrees of bad judgment, though. We could probably poll the room here and someone would think that something was bad judgment, and something else was stupidity or whatever you want to call it.

[Paige Backman]

Sure.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

I also think there may be other groups out there that may feel that one example of bad judgment was a worse in degree than a previous example of bad judgment. I guess it's a slippery slope with regard to what we do.

[Paige Backman]

It is, but I think the line in the sand is that until you are an adult, we're going to give you some leeway here. Let's keep in mind that this is in the course of commercial activity. Someone is making a profit off this information.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Yes.

[Paige Backman]

This is not a news report. This is not for journalistic purposes. This is in the context of someone making money off this information.

I think that whether in my view it's inappropriate or in your view or in the view of the 50 other people here, the minor or the minor's parent should have the right to say, “You had the right to make money off it. Now I want it gone”.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Okay.

Ms. Reynolds.

[Molly Reynolds]

The only thing I would add to Ms. Backman's comments actually relates to one of the points Mr. Cameron made in his initial submission, which is that there is a context in which we look at what the legislative requirements are and what the court's enforcement powers are.

I think it's quite right, as PIPEDA currently does, to place an onus on the source holding the personal information to delete that information when it's no longer necessary or upon request from an individual, but when we're talking about the right to be forgotten, we often start talking about third party intermediaries like search engines. Where we are not going to the source but are going to the organization that's holding that information or maybe just allowing access to it or indexing it, that really should be a matter for the courts to exercise their jurisdiction in terms of injunctions or mandatory orders.

I don't believe that the legislation should be addressing any organization other than the holder.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

That's fair.

Mr. Cameron.

[Alex Cameron]

If I could add one final comment, PIPEDA has built into it, of course, the reasonable purposes concept in subsection 5(3). Irrespective of consent and other provisions, you can do only those things that a reasonable person would consider to be appropriate. That's quite a generic standard, but of course it has to be interpreted, which is the way that the commissioner and the courts have approached it.

It's not without precedent. I'm not saying it's an easy concept to scope, in terms of whether or how that type of right could be scoped, but there are standards to which you could point in terms of how that could be assessed as to what's on which side of the line.

[The Acting Chair, Conservative, Pat Kelly]

I'm going to interrupt now. We have bells now that indicate that a vote must take place in the House of Commons. There would have to be unanimous consent to continue. We have 30 minutes to get to our seats in the House to vote. Unless there is unanimous consent to continue, I will suspend the meeting.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

We're not likely to get the witnesses back. Fifteen minutes should be enough to get to the Hill.

[The Acting Chair, Conservative, Pat Kelly]

Is there unanimous consent to continue for 15 minutes?

[Some hon. members]

Agreed.