Evidence of meeting #63 for Access to Information, Privacy and Ethics in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was records.
A recording is available from Parliament.
4:35 p.m.
President, Canadian Association of Research Libraries
But I think the same philosophy can apply unless there is a privacy issue.
4:35 p.m.
Executive Director, Canadian Association of Research Libraries
May I add to that? I think the question of when there is a privacy issue really is the question, and it really deserves some very careful thinking through, because, as you know, the Internet does allow much more visibility. We can take it back to the print era and think about what was in the public record but was hard to find, and what was stored in archives and took great effort—or potentially payment—to find. It was not so much available.
There is now so much opportunity to put something up and have it available for a wide range of uses, so the question changes. It changes to one of, well, is there really a privacy issue that would prevent it? If there isn't, then the open flow of information would be desirable.
4:40 p.m.
Conservative
Pat Kelly Conservative Calgary Rocky Ridge, AB
There are 30 seconds left if you'd like to weigh in, Mr. McKay.
4:40 p.m.
Head, Public Policy and Government Relations, Google Canada
Mr. Saini brought up Globe24h. In practical terms, there are technical barriers to strip-mining information from these sites that, as you point out, are otherwise restricted from search engines, and then making that available online to be accessed through search engines. The barrier isn't really so much a process of the right to be forgotten as it is one of technical sophistication by those sites and those site managers to realize that their information is being strip-mined and placed on another site for public access. That's the first step.
4:40 p.m.
Liberal
The Vice-Chair Liberal Nathaniel Erskine-Smith
Thanks very much.
Interestingly, CanLII, which is a public database of Canadian court decisions, is not indexed by Google, so that's a good example.
4:40 p.m.
Liberal
4:40 p.m.
Liberal
Ali Ehsassi Liberal Willowdale, ON
I'd like to ask Ms. Bourne-Tyson and Ms. Haigh a question, but first of all, I'd like to thank everyone for appearing before us. It's been very helpful and very informative.
Ms. Bourne-Tyson, in your opening remarks, you were talking about the concept of a “constrained approach” to the right to be forgotten. What would the parameters be? I think the example you provided was that there had to be a court order for there to be erasure. Do you think this is one of those things where only a court order could lead to privacy?
4:40 p.m.
President, Canadian Association of Research Libraries
We have speculated that to some extent, for some of the low-hanging fruit, there could be a regime where, if it's a clear case of a minor and unfortunate photographs, this would not require any sort of assessment or an order, but in any other situation where it is more complex and you are balancing the rights of the public record and freedom of expression with an individual's rights, there would have to be a judicial order.
4:40 p.m.
Liberal
Ali Ehsassi Liberal Willowdale, ON
I don't know what the definition of low-hanging fruit would be. For example, when it came to this specific thesis that you were mentioning, would that be considered low-hanging fruit and necessitate a judicial order?
4:40 p.m.
Executive Director, Canadian Association of Research Libraries
I would tend to say not, but I think that things like pardons.... When information is mounted on the Internet in contravention of local policy, whether it's legislated or company policy or whatever, and when these things are without consent of individuals and there is something inappropriate about it, or if the information is inaccurate in some manner, I guess, that might be a clearer case than something that really is weighing in the balance and where it's unclear whether the other rights...because those other rights are broad fundamental charter rights.
When it gets difficult like that, we are simply saying that it should be a harder process and a more measured process, and it should have a more neutral assessment, because it matters. It matters for the social fabric of the country. It's not a case where.... We don't want Google making that decision, really; that doesn't seem appropriate. Because it's hard. They're not black and white. My sense is that there are some sensitive areas that are in the middle. My archival colleague probably can speak to it better than I can.
4:40 p.m.
Liberal
4:40 p.m.
Representative, Ethics Committee, Association of Canadian Archivists
I think the library community is probably better at balancing off those freedoms of expression—journalistic, literary, artistic—versus privacy, although I would point back to how, when we do look at this, it is about personal information, which is recorded information about an individual. I certainly agree that there are probably very easy cases whereby you could probably prescribe types of information that we would be able to remove without a court order, such as child pornography, as you've said, or those types of very sensitive information where it would cause maybe more than reputational distress, but mental distress or medical or some other type of harm, so it implies a harms test that could be brought in.
4:45 p.m.
Liberal
Ali Ehsassi Liberal Willowdale, ON
Thank you for that.
Now I would ask the Retail Council a follow-up question. During your testimony, you were suggesting that as the Privacy Commissioner is reviewing PIPEDA, if there were any questions surrounding consent, you would like to be part of that conversation. Given the reality that this could very well not be the case, is there anything you would like to say here before our committee regarding consent?
4:45 p.m.
Vice-President, Grocery Division and Regulatory Affairs, Retail Council of Canada
I'll just say that if that is not going to be the case—because I understood that they were going to publish a report later in 2017—the main point there is that we believe in not throwing out the baby with the bathwater. The notion of consent, which is really a cornerstone of the legislation, is a really good one. It has a proven track record. The point is that if there were to be conversations about how that is interpreted, we would love to be part of that, but to put anything more prescriptive or “one size fits all” into the legislation is not something that our members would be supportive of.
4:45 p.m.
Liberal
The Vice-Chair Liberal Nathaniel Erskine-Smith
Thanks very much.
We'll go back to Mr. Kelly for five minutes.
4:45 p.m.
Conservative
Pat Kelly Conservative Calgary Rocky Ridge, AB
Thank you.
I'd like to ask each witness for a quick yes-or-no answer as to whether you support or favour the creation of an order-making power for the OPC. If I may, I'll just get a quick yes or no from each of you.
4:45 p.m.
Vice-President, Grocery Division and Regulatory Affairs, Retail Council of Canada
No, not anything that would be prescriptive.
4:45 p.m.
Head, Public Policy and Government Relations, Google Canada
In just one word? No.
4:45 p.m.
Executive Director, Canadian Association of Research Libraries
Is this for more powers for the Office of the Privacy Commissioner?
4:45 p.m.
Conservative
Pat Kelly Conservative Calgary Rocky Ridge, AB
It's for an order-making power, as opposed to an ombudsman model. On the present ombudsman model or order-making power, do you support going to an order-making power for the commissioner?
4:45 p.m.
A voice
Yes.
4:45 p.m.
Executive Director, Canadian Association of Research Libraries
I would say possibly.
4:45 p.m.
Representative, Ethics Committee, Association of Canadian Archivists
I live within a jurisdiction where the commissioner does have it, and I think it does have some benefits, especially for clarity.