Evidence of meeting #88 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 question.
A recording is available from Parliament.
9 a.m.
Conservative
Peter Kent Conservative Thornhill, ON
Thank you, Chair.
It's good to have you with us again, Commissioner.
You're aware of the concerns expressed by the former commissioner, Ms. Stoddardt, regarding possible constitutional challenges to some of the provisions or recommendations as they apply to minors. Did you or your office carry out a study, an analysis of the constitutionality, of some of the changes you advocate?
9 a.m.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
The main constitutional issue that many people talk about is whether the remedies that, I think, exist would contravene freedom of expression. It's a charter issue, and we have looked at this extensively.
I hear that Madame Stoddardt may have expressed views about constitutionality from a division of powers perspective, namely that if we apply federal legislation the way I advocate, this might trample on provincial jurisdiction over property and civil rights, interprovincial commerce, and so on.
As I think you know, the Quebec government years ago launched a challenge to the constitutionality of PIPEDA on that ground, and that has been adjourned and has not been decided.
I would say that that risk exists as soon as you have federal legislation that can be said to trample on provincial jurisdiction, such as over commerce exercised by companies in province A or B. What I advocate would simply be another manifestation of the application of federal law. Maybe it increases the risk that an organization would raise these issues if it is not in agreement with having to comply. However, conceptually, I think we're just applying the federal law as it is. It doesn't change the situation in terms of.... We're not further trampling on provincial jurisdiction; we're just exercising the authority of the federal law, perhaps thereby creating a greater risk, which a company may challenge, but the legal issues would remain the same, I think.
9:05 a.m.
Conservative
Peter Kent Conservative Thornhill, ON
Thank you.
Apparently you received 28 submissions in your consultation on online reputation. You say a very large majority were opposed. What percentage of those 28 would have been opposed?
9:05 a.m.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
We can get back to you on the percentage, but I think it's fair to say that it was the vast majority. We received 28 submissions, essentially from experts and media companies, which were very helpful. It certainly made us focus long and hard on freedom of expression issues, but there's the broader public. We consulted not that long ago, before I determined the strategic priorities of the office in 2015. When I decided that reputation would be one of the four strategic priorities, this was based on what we heard from Canadians. Therefore, although most of the 28 experts, let's call them that, were against—but not all; some were in favour of the right to de-indexing—I think the broader population is concerned.
Now the broader population did not focus on the exact means, but did express serious concerns about their reputation.
9:05 a.m.
Conservative
Peter Kent Conservative Thornhill, ON
I wonder if you could just address the opposing opinions about whether or not online reputation de-indexing—removing information—should be regulated by the private sector or a public service individual.
9:05 a.m.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
One of the legitimate concerns raised by stakeholder companies is that it should not be up to the private sector—search engines or organizations responsible for social media—to balance individual rights. Obviously, that is not a frivolous position.
However, you need to look at the practicalities of the issue. As I say in my paper, as a matter of law, all organizations, including search engines, have an obligation to develop a process to ensure that the substantive rights are respected, namely to the accuracy of information. I think that's a legal obligation they have under the current law. Does it make it proper for them to balance individual rights? Certainly, that's something to consider because it's not frequent.
As a practical matter, in Europe, we have seen hundreds of thousands of these requests made since the Google Spain decision of 2014. Should a tribunal be created? Normally, a tribunal of some sort would be created to adjudicate these requests. Should we create a tribunal that would look at hundreds of thousands of these requests every year? That would be more in line with the nature of the balancing that is at play, but I don't think it's very practical.
Although that may not be where people would go intuitively, to ask companies to develop processes, as they are bound to do under the law, to have a first decision about these applications—of course, subject to the rights of individuals who are not happy to make a complaint to our office, independent tribunal, and ultimately, the courts—is a workable system, I think. It's not a perfect system, but it's a workable system.
9:10 a.m.
Conservative
Peter Kent Conservative Thornhill, ON
I do have another question that was prompted by your reference to the right to accuracy in online material, but I'll leave that perhaps to one of my colleagues in subsequent rounds. Thank you.
9:10 a.m.
Conservative
9:10 a.m.
NDP
Charlie Angus NDP Timmins—James Bay, ON
Thank you very much.
I just want to say that I'm very supportive of order-making powers, so that we have a regime that can do the work that it's intended to do.
On the issue of online reputation, I have a number of concerns. I was someone who thought the idea of “right to be forgotten” was a really great idea, because there are so many horror stories of digital worlds gone wrong. I also see that it can flip and be used by people who want to be forgotten for reasons that maybe they shouldn't be forgotten for. I think that you exist in the digital world. Disappearing to me is a questionable factor, for example, if it's an issue of your being accused of sexual misconduct—nothing was proven, but you can have that record erased, so that you're not tracked.
Is this something that we should be pursuing, given people's ability to misuse it?
9:10 a.m.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
On the question of who will use this right, and what the European experience is—and I'll get to the question about whether it's appropriate to make people disappear, which I think is a bit of an exaggeration of the right—in the European experience, there is this perception that it will be used by people with a doubtful past who want to erase that doubtful past, whatever that past is.
From the European experience, the figures would show that criminality, or factors such as that, has represented approximately 5% of the requests made. Most requests are made by people for other reasons. The record also shows that search engines grant these requests at the rate of roughly 40%. If these are being granted 40% of the time, there must be some merit to them. They're seen as meritorious.
The figures that we have also show that in France—we are going to look at other countries—70% of the decisions made by the search engines that lead to complaints to my equivalent in France are upheld. I take that to mean that the search engines are doing an okay job.
On the question of whether people should be able to erase their past—particularly sexual misconduct that may or may not have led to a finding by a court—that's obviously a very relevant and timely consideration. It will not be a foregone conclusion what the outcome will be. In many cases I think, properly applied, the request should be denied. Let me explain briefly why. If an alleged aggressor were to make a request, of course the reputation of that person would be a factor to be determined, but there is a question of accuracy then. The person would have to demonstrate that the facts alleged are untrue, and if the evidence was not there, the information would stay.
However, more important is the public interest. What we advocate in the paper is that accuracy needs to be looked at in the context of the public interest. Some of the potential requesters of the right may be public figures. In that case, I think it's pretty clear that the request should be denied, because the public interest would be such that it be denied. Moreover, even for a person who is not a public figure, there is an important public and societal debate in Canada and other countries currently that makes this a question of public interest, and that public interest would have to be weighed against the reputation of the individual.
I'm not saying that this leads to easy solutions, but I think, properly applied, all of these considerations would be borne in mind, and in many cases the request would be denied.
February 1st, 2018 / 9:15 a.m.
NDP
Charlie Angus NDP Timmins—James Bay, ON
Okay, I guess it's how this is going to be dealt with. Certainly, there are legal tools, and maybe legal tools are not strong enough. In cases of revenge porn, sexual harassment, anything to do with minors, law enforcement needs the ability to deal with those immediately, so we need to know that those tools can be put in place for that kind of online bullying—there's a clear risk, and it's an obvious risk.
In the case where, if I make a tweet about my dear friend, Mr. Erskine-Smith, if I make some kind of outrageous comment, and he says, “That's not true”, he could threaten me with legal action for my tweet, and then I would have to decide whether to continue or to pull it down. So we have legal tools there.
I am concerned about issues of accuracy and being out of date, because the Internet is not a book; it's not an article. It is an ongoing, messy expression of discussion and debate. People write all kinds of crazy stuff about me online that's out of date and incorrect. Maybe they just don't like me.
But I'm worried about those tools being applied. I'm also worried about whether or not corporate reputation could be used, because we see SLAPP suits used against organizations all the time. To say, “This has hurt our online reputation, our corporate reputation, and we want this thing shut down”, to me, it's a very powerful tool to take something down off the Internet.
Is it your office that would adjudicate these various scenarios?
9:15 a.m.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
First it would be the organizations, then my office, and ultimately the courts.
9:15 a.m.
NDP
Charlie Angus NDP Timmins—James Bay, ON
In terms of online reputation and the definition of it, people's online reputations get trashed in various forums all the time. Some people are more sensitive than others. David Irving, a Holocaust denier, felt his reputation was trashed and he went to court. Could he go to your office and say his academic rights were being undermined by being challenged?
9:15 a.m.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
It's important to say that the examples you give are all of public figures. I think it's almost a foregone conclusion that, for public figures—maybe that's discrimination against public figures—
9:15 a.m.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
—they would have almost no leg to stand on.
The question is what happens to ordinary Canadians, who may be defamed and who have to apply for a job, when the potential employer makes a decision based on what he or she sees on Facebook or Google, which may be inaccurate? That's the kind of situation I'm concerned about.
9:15 a.m.
Conservative
The Chair Conservative Bob Zimmer
Thank you, Mr. Angus. You're time is over.
Next up, for seven minutes, is Mr. Saini.
9:15 a.m.
Liberal
Raj Saini Liberal Kitchener Centre, ON
Good morning, Mr. Therrien. It's always a pleasure to have you here.
II have just some old business and some new business, so let's start with the old business first. In the past when we had you here in front of the committee, you were in favour, at that time, of maintaining your ombudsman model. Then you published a report in 2016-17 in which you called for, and I quote from the news release, “amendments to the federal private sector privacy law to provide for order-making powers and the ability to impose administrative monetary penalties.”
You've also stated that if the Information Commissioner got order-making powers, it would significantly disrupt the balance between your two offices. I know we've alluded to it, so I'd just like some clarity on the issue, just so we can have on the record that you believe that the powers given to the Information Commissioner should be balanced with your powers so there's no disruption. You would also have the ability to dismiss vexatious and frivolous requests.
9:20 a.m.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Certainly I'm in favour of order-making powers. Can you repeat the question about—
9:20 a.m.
Liberal
Raj Saini Liberal Kitchener Centre, ON
That's because you initially stated that the ombudsman model was fine.
9:20 a.m.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
It is in the public sector.
9:20 a.m.
Liberal
Raj Saini Liberal Kitchener Centre, ON
Then in your 2016-17 report, you called for amendments that would give you order-making powers. Do you believe the powers that the Information Commissioner has should balance your powers so there's no disruption between the two offices?
9:20 a.m.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
For the public sector, I do.