Information & Ethics Committee on June 1st, 2017

[Colin McKay]

This is part of the reality in Europe, which is that while you may have the completion of the sentence and you may have some level of confidentiality imposed on the record, the reporting of the record still exists, both through the media themselves and other sources.

Then, country by country, it may be a legal requirement or it may be a judgment call on whether or not there's a request, and it's followed through, to suppress the results of those still extant news reports about the crime. That's why I pointed to the civic discourse, because there really needs to be a solid dialogue.

That has happened on a nation-by-nation basis in Europe. The right to be forgotten applies across the entire union, but it still varies between jurisdictions as well.

[The Vice-Chair, Liberal, Nathaniel Erskine-Smith]

Thanks very much.

Our last seven minutes goes to Mr. Saini.

[Raj Saini, Liberal, Kitchener Centre, ON]

Good afternoon and thanks for coming here.

The question I have is probably most pertinent to Mr. Kozak and Ms. Bourne-Tyson. I'm sure you have very strong feelings about the right to be forgotten. We've spent a lot of time on this issue, and I just want to get your feedback. Could you give me an idea of what your European counterparts think of it?

Right now in Canada, we have four different privacy regimes. When you look at the right to be forgotten in Europe, with Europe enforcing the GDPR in May 2018, we are going to have to deal with that question here to maintain our adequacy, which is also good for us in terms of our competitive business environment here and in terms of CETA.

Have you gotten any feedback? I'm more interested in what their thoughts are. Have you spoken to them or do you have any feedback on what they're thinking, on how they're reacting to this new provision?

[Donna Bourne-Tyson]

In terms of how our colleagues in Europe are reacting, there are discussions and studies under way under the International Federation of Library Associations and Institutions. They have done a survey, country by country, of how this unfolds.

In general, somewhere between what's happening in Europe and what happens in the United States, Canada can perhaps find a middle way where we are more effectively balancing the rights of the public good with the individual.

[Susan Haigh]

I think the same thing. On the question of whether privacy trumps freedom of expression rights or whether freedom of expression trumps privacy rights, the U.S. versus European model, our sense is that there might be something, a judicious “in-between”, that is worth exploring and discussing and potentially codifying.

[Raj Saini, Liberal, Kitchener Centre, ON]

Mr. Kozak, do you have any comments?

[Greg Kozak]

I don't have much to add in that regard. Unfortunately, I don't know specifically what analogous associations are doing in Europe, although I can point to the fundamental differences we have in our juridical/legal systems. The EU's is mostly based on dignity, whereas our privacy is mostly coming from liberty. Theirs is more one that is non-revokable, whereas here we do have a renounceable aspect to it. So it gets to the point of adequacy between the EU and Canada. We might not always fit precisely in trying to achieve that balance, just based on our underpinning systems here.

[Raj Saini, Liberal, Kitchener Centre, ON]

When we talk about balance, I'm sure you're aware of the Globe24h.com case where there was a website that contained legal records, and there was a Romanian company that indexed those records to a name and then charged money to have the name removed.

Could that be a compromise? Information is not totally forgotten; it's held in a website but the names are de-indexed. You could have the provision of having the information retained but not having it indexed. Someone would really have to look for it; it would not come up serendipitously or just by fluke. Would that be a balance?

[Susan Haigh]

In our statement, that is what we were saying, that there is a likelihood that there are cases where delisting would make some sense. In some of the instances that were talked about, information is up on the web illegally anyway or is inaccurate, or perhaps it doesn't have the informed consent. Perhaps it has to do with juvenile content, and so on. That's all good....

[The Vice-Chair, Liberal, Nathaniel Erskine-Smith]

Mr. Kozak, do you have anything to add?

[Greg Kozak]

I would just point back to what I stated briefly, that our focus would be mostly upon what impact this would have on the public record. In cases where the harm to reputation diminishes over time, and certainly with deceased individuals, would we want to completely destroy listings or records? De-indexing might be a solid way of achieving that middle ground, of concealing it during a period of sensitivity, with mindfulness that this information is part of the public record and might eventually come back into the public record in a more accessible format.

[Raj Saini, Liberal, Kitchener Centre, ON]

This question is for you, Mr. McLinton. I wanted to get your thoughts on something.

I was reading an article about how when a customer walks into a retail store now, there's technology—either through Wi-Fi or through Bluetooth—whereby you can analyze exactly where they're going in the store and where they're stopping in the departments, but consent has not been given. In terms of consent being implied or explicit, do you feel that it should be implied, or do you feel that customers should know that as they're travelling through the store they're being monitored in some way?

The reason I ask is that with cellphones and other smart phones right now, you have unique identifiers in the phone, so I know there's probably going to be some de-identification of the data. You're not linking to a name, an address, or an email, but there is a unique identifier in the phone, and that data can be reidentified in the future. Is there no worry that this could happen?

[Jason McLinton]

I'm personally not at all familiar with that, so I'd like to look into it. In terms of every conversation I've had with the members, they believe strongly in the idea of consent and reasonable consent: that their consumers would reasonably know how their information was being used and that they had consented to it.

Again, it's not in their business interests to do something like that. If a consumer did find out about it and was very upset, for whatever reason, for whatever happened in that particular situation, that would not be in their business interests.

I'd be interested in learning more about this, because that's not been my experience in terms of all the conversations I've had with members.

[Raj Saini, Liberal, Kitchener Centre, ON]

I can give you the article I read.

[Jason McLinton]

Thank you.

[The Vice-Chair, Liberal, Nathaniel Erskine-Smith]

That's the end of our seven-minute round.

Mr. McLinton, perhaps you could consult your membership and get back to the committee in writing.

[Jason McLinton]

Mr. Chair, may I also provide a point of clarification on the response I gave earlier to one of Mr. Long's questions?

[The Vice-Chair, Liberal, Nathaniel Erskine-Smith]

Sure.

[Jason McLinton]

Mr. Long, I wanted to clarify that for the members that I've spoken to, the level of awareness is very high with regard to digital privacy. RCC has not taken a lot of activity.... We have some committees, and I mentioned the privacy committee that has had various levels of activity over the years. I mentioned anti-spam and some other work we've done with the chamber, which is on digital issues generally as opposed to specifically on privacy. Some of it has to do with security.

I just want to clarify that. I don't believe it's the RCC's role to be doing that. In all the conversations I've had with members to date—members of all sizes—the level of awareness is very high. Why? Again, it's in their business interests to maintain that consumer trust.

[The Vice-Chair, Liberal, Nathaniel Erskine-Smith]

Thanks very much.

Our five-minute round begins with Mr. Kelly.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Ms. Bourne-Tyson, in your remarks, you touched on an area that interested me quite a bit and introduced a way of looking at this that perhaps we haven't heard before. You talked about the right to erasure or to be forgotten and pointed out that de-indexing something from a search engine does not hide it, or is not the same as erasure. It's about making something more difficult to find, and the determination of the researcher is a factor in truly being able to either lose or bury information.

You also talked about business failures, criminal backgrounds, and things like that, which people would not wish to have known. It occurred to me then that for things like business failures, professional misconduct, or legal action judgments, especially perhaps those dealing with family court, these public records are created and are typically not made available on the Internet. They're public, but the researcher may have to pay a nominal fee to search, say, a land title. You can't Google somebody's land title or the title to somebody's property, but you can go to a land title office and, depending on the province, pay a few dollars and get that information.

Could you elaborate? I'd like a little further discussion about the separation of public information and online information.

[Donna Bourne-Tyson]

Over time, there will be less of a distinction, and really, for digital citizens to have equitable access, one would hope that everything would be available online unless there is some specific reason, a privacy-based reason, for it not to be. Again, the delisting, as opposed to removal, would meet a short-term privacy need. There is technology available that would allow the delisting to terminate after a certain point in time, such as 20 years after somebody's death. We don't even need to be doing this manually. We have the technology to set something up so that eventually this information returns to the public record.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

I guess it seems that most Canadians have long been comfortable with the idea that a court judgment is public information and that land title records are public information, yet I think Canadians would be very uncomfortable if they thought you could just Google that information and find it instantly. On this line between.... I mean, there are reasons why some of these types of information are simply not available at present through search engines.

I'll let you comment if you want to add, and then I'll have Mr. McKay jump in.

[Donna Bourne-Tyson]

Susan can maybe say more on this.

In the government's open government initiative, the philosophy is that everything is open by default.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

This is private information, though. This isn't government information.