Good afternoon.
Thank you for the opportunity to speak to the Standing Committee on Access to Information, Privacy and Ethics during your hearings on the Personal Information Protection and Electronic Documents Act.
My name is Donna Bourne-Tyson. I am the university librarian at Dalhousie University; president of the Canadian Association of Research Libraries, known as CARL; and a board member of the Canadian Federation of Library Associations. Joining me today is Susan Haigh, executive director of CARL. We are pleased to be here to share the research library perspective on the right to be forgotten.
CARL is the national voice of Canada's 31 largest research libraries, 29 of which are located in Canada's most research-intensive universities. CARL also represents Canada's National Science Library and Library and Archives Canada. CARL members' parent universities attract over $6 billion in research funding annually, and our member libraries spend over $285 million annually on information resources to support learning, teaching, and research.
CARL members act as a foundation for Canadian-led innovation by providing access to knowledge as well as preserving vital information required to support Canada's research community. Academic research libraries are at the vanguard of technology as the sharing and dissemination of information shifts to digital environments. In this light, CARL has watched the emergence of the right to be forgotten with great interest.
Our position is that there are important rights and freedoms to be weighed, respected, and judiciously balanced in any legislation or regulatory approach to the right to be forgotten. As we noted in our short submission to this committee in April, we are guided by the “Statement on the Right to be Forgotten” issued by the International Federation of Library Associations, IFLA, in February 2016.
CARL has elected to focus comments on the right to be forgotten, but we do support the perspectives on PIPEDA more broadly that will be outlined today by our colleagues from the archival community. Research libraries play an increasing role in research data management, and we are very engaged in defining and practising what we might call the ethical management of data. The library and archival communities see data management as key to ensuring appropriate protection of individual privacy while, at the same time, enabling more data to be openly accessible and allowing technology-based research that mines anonymized or aggregated datasets.
Now I will turn to our views on the right to be forgotten.
In 1987, CARL adopted a freedom of expression statement that confers responsibility on Canadian research libraries to “facilitate access to...expressions of knowledge, opinion, intellectual activity and creativity from all periods of history to the current era including those which some may consider unconventional, unpopular, unorthodox or unacceptable”. This statement echoes the fundamental right to expressions of knowledge, creativity, and intellectual activities as embodied in the Canadian Charter of Rights and Freedoms.
At first reading, the right to be forgotten appears to run counter to this responsibility. This is not to say that libraries do not believe in protecting the right to privacy. Rather, as I will discuss here, the right to be forgotten is a complex, emerging, ethical and technological issue that demands a careful balancing of fundamental rights that, at times, can appear to be in conflict.
Libraries are, by their very mission, upholders of the public interest and are sensitive to the concerns around personal privacy on the Internet. The library community recognizes that information on the Internet can cause harm, particularly in cases where the information is false or defamatory. The right to be forgotten can be a legitimate means for individuals to address these situations.
Libraries are also the preservers of the public record and defenders of freedom of speech and access to information. The research library community has identified three dangers to be avoided by any legislation or regulatory approach to the right to be forgotten.
First of all, privacy, however important, must always be weighed against other rights, such as freedom of access to information and freedom of expression. These freedoms are not honoured when information is removed from access or is destroyed. While content can be removed from the Internet by its owners, a “right to be forgotten” approach must ensure that the privacy rights of an individual who is the subject of the content do not unduly impinge on the expression rights of creators of the content, such as authors and publishers.
Another danger of the right to be forgotten is the potential for the over-removal of content. If a right to be forgotten is encoded in PIPEDA or another piece of legislation, lawmakers and/or regulators must be proactive in reducing the incentives of platforms like Google or Facebook to simply delist information upon any request. In the section of its transparency report that addresses “right to be forgotten” search removals in Europe, which is accurate up to May 28, 2017, Google has evaluated over two million URLs for removal, with 750,487 URLs removed.
While Google does appear to be attempting to balance competing public interest in its decisions, it is important to remember that for each time an individual's privacy is protected through a right-to-be-forgotten request, it may muffle the speech of those whose content is being delisted, raising the spectre of censorship.
Another closely related issue is the integrity of the historical record. Information on the Internet may have future value, both for the public and for researchers. We believe an expert assessment of the impact on the historical record, preserved for future generations of Canadians, and ways to mitigate that impact should form part of every decision to remove information. In recommending this, research librarians recognize that the digital age has increased the accessibility of historical records that might otherwise have persisted only in physical libraries or archival repositories.
In that light, an approach to the right to be forgotten that downplays visibility by suppressing access through search engines seems marginally more acceptable than outright removal. In effect, delisting removes information from the public view obtained through a simple keyword search, but does not actually remove it from the reach of the more skilled and persistent researcher, who may also search for repositories that are not indexed by search engines.
Therefore, in our view, a limited and nuanced application of the right to be forgotten is appropriate. The removal of links to references to a minor juvenile crime or to sexually explicit photographs of a private citizen are examples of a proper application of the right to be forgotten, but what of the removal of links to references to a business failure, an injudicious statement by a corporate CEO, or public records that have not been sealed by court order or judicial practice?
To cite a recent specific example, a request was made to remove from the Internet a thesis that contained a chapter relating to organized crime activities by a named person who had since changed his life. The request was not acceded to because it was determined that the work was valid research and because the request was not supported by the thesis author and copyright holder. In that example, CARL would say that the correct decision was made; the thesis should not have been removed from the Internet simply because the person did not want any references to his criminal past to be on record.
The right to be forgotten should not be able to be too casually invoked by individuals, or their requests too readily acceded to by search engines. If implemented, such a right must have limited application, with clarity as to the conditions under which it may apply. There are complex considerations to be weighed and rights to be balanced, very likely requiring case-by-case assessment. In most cases, a review by an informed, but impartial, party is essential. A right-to-be-forgotten regime that requires a judicial order for any information or data removal seems merited, rather than leaving companies like Google or indeed research libraries with the task of deciding on sensitive, ethical situations pertaining to individual Canadians.
In closing, CARL, on behalf of the research community that its library members serve, calls for a very constrained approach to the right to be forgotten, one that will generally require a judicial order, and will not apply where retaining the links in search engines is necessary for historical, statistical, or research purposes; for reasons of the public interest; or for the exercise of the right of freedom of expression.
Thank you.