Information & Ethics Committee on Feb. 1st, 2018

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you very much.

I'd certainly hate to recommend—after my colleagues here have done such incredible work—that if we're going to be talking about issues of takedown, online reputation, and order-making powers, specifically on that, I think we're going to need to discuss this more.

I'm not all that comfortable with looking at what Europe has done. It's helpful, but I think that if we look at Canada's role in dealing with copyright legislation over the last 15 years and the issue of takedown, we can see that Canada carved out a unique position, as opposed to the Europeans with their electronic commerce directive and to the U.S. with the DMCA. We have a notice and notice regime because there were serious concerns that the power of the rights-holder could infringe on development of the Internet and on rights.

We established a notice and notice regime. That has put Canada in I think a very interesting place, so if we're going to be looking at protection of online rights and reputation and also making sure that we are somehow balancing the right to publish and to make commentary and to challenge, it's going to take I think a really fulsome and public discussion, because this is not just about changing regs. This is about how people interact.

[Daniel Therrien]

Absolutely.

[Charlie Angus, NDP, Timmins—James Bay, ON]

I'd like to ask you if you've looked at the Canadian regime in terms of takedown versus the Europeans and the Americans, because we have really carved out an interesting compromise position.

[Daniel Therrien]

We've certainly looked at the place of freedom of expression in Europe, Canada, and the U.S. It's different in the three jurisdictions.

At the end of the day, I think it's important that I act based on the current law to protect the reputation of people, but at the same time, there are, as I say in the paper, extremely legitimate questions about the balance with freedom of expression. An important reason why I think it would be worthwhile for you as elected officials to look at this is exactly the reason you suggest: that there is a Canadian way of balancing these important interests.

I cannot invent this. I have to apply the law as it is, but you may hear experts, stakeholders, and citizens on these very important questions—the fabric of the country—and make proposals and legislate.

[Charlie Angus, NDP, Timmins—James Bay, ON]

What you're saying is that these are issues that you've identified as serious and that require a deeper examination so that we can have the tools and your office can have the appropriate tools that are balanced. You're asking Parliament—

[Daniel Therrien]

Yes.

[Charlie Angus, NDP, Timmins—James Bay, ON]

—to engage in this process.

[Daniel Therrien]

Yes, but in the meantime I have to apply the law as it is.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you very much.

[The Chair, Conservative, Bob Zimmer]

Thank you, Mr. Angus.

We have run out of time, but again we have two further questions. These are from Mr. Erskine-Smith and Mr. Baylis.

Mr. Erskine-Smith.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

My question relates more generally to the right to deletion. I understand from the report and from other things in your testimony today that we have a right to deletion under PIPEDA as currently interpreted.

Just so that we're clear on this, my question is, where does that case law run out? We might want to codify some of that in our recommendations, but do we want to go further than the existing case law? To the extent that we want to go further, can you explain to this committee how much further we want to go and where the runway ends on the current interpretation?

[Daniel Therrien]

I'll start, and I'll ask my colleague, Regan Morris, to complete my answer, because he has read more about these issues.

To me, the runway ends with the reasonable interpretation of the words of the statute as they are, so the substantive rights granted are to accuracy, completeness, and the up-to-date nature of the information. In some cases, de-indexing will be an effective remedy, but in others, takedown will be necessary to be an effective remedy to ensure compliance with these principles. That's what I would say.

Regan.

[Regan Morris, Legal Counsel, Office of the Privacy Commissioner of Canada]

I'm not sure I have much to add to that point. It's a difficult question. I think it ties back to the commissioner's recommendation that Parliament look at these issues and at the balance between freedom of expression and privacy interests. That may speak to additional criteria being added to the legislation to address those issues and the appropriate—

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

I have just a short follow-up, I guess. There's de-indexing. There's the right to take down information that you've posted. Then there's the right to have information taken down, not just de-indexed, of things other people have said to you.

Just so I'm clear, your view would be that we should have a right to de-indexing that's clear in the act, and a right to take down information in certain instances, but you wouldn't go so far as to say there should be a right to take down information that other people have posted, and that rules like defamation law should be applied to that category.

[Regan Morris]

I think the position in the paper is that there's a balance when what's at issue are comments that someone else has posted about you, because it's not just your personal information that you've posted; it's someone else's views. They have some expressive rights, so it can't be an absolute. You have the ability to take down that information.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

What would we want beyond defamation law? We have defamation law, and I can sue and have something taken down. Do we want rules beyond that when it comes to things other people have posted? Defamation law does just that: it strikes the balance between freedom of expression and protecting reputation.

I wonder, are we talking about different rules beyond defamation law when we talk about what other people post? I think I'm clear on the first two paragraphs.

[Daniel Therrien]

I would say two things, maybe, on that.

An important distinction is between facts and opinions. Accuracy obviously relates to facts; opinion is freedom of expression and should not be touched by any other entities, as I'm advocating.

Should we go beyond defamation? I think that if information put up by someone about somebody else is factually inaccurate, that can lead to an action under defamation law, but I think it would be more effective to either de-index or take down the information. I think we're playing with the same substantive considerations. It's a question of whether it's okay to have two remedies. I think it is okay to have two remedies: one that's faster, the other the existing defamation law principle.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

That clears it up. Thanks very much.

[The Chair, Conservative, Bob Zimmer]

Thank you, Mr. Erskine-Smith.

Next up is Mr. Baylis.

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

My question has been half or mostly dealt with. However, I just want to further understand it. I'll use Facebook as an example. If I publish something on Facebook, I am the publisher of that. You would agree that I have the full right to remove that. I have the full right of takedown.

[Daniel Therrien]

Yes.

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

If I publish something, or put it up there, and someone then takes a portion of it, or let's say all of it, and shares or puts it on their Facebook page, I come along and say, I want my page taken down. Then comes in the question of de-indexing or the rights I have over that other person's Facebook page who has used my information when I had put it up there with the right to be used. Let's say I did the same thing with a book I published. That gets into copyright as well. Once I put something out there, I have the right to take that information down myself.

How do you see my right to impose a de-indexing or takedown of someone else's Facebook page for argument's sake?

[Daniel Therrien]

If the request were to be granted to remove what is on the other person's Facebook page, first of all, the requester would have to demonstrate that the information is inaccurate. If the source of that information is what the first person had just put up, that would be pretty difficult.

The first requirement is to prove inaccuracy or incompleteness, or that it's not up to date. Let's assume that 10 years have gone by between the original posting and the second posting and the first individual now claims that the information is no longer up to date and current. Then it's more possible. Then the organization would have to distinguish the facts. Are they still accurate in the opinion of the second person? If there's a question of opinion by the second person, then that should not lead to the takedown of that opinion of the second person.

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

Let us assume the information posted was accurate and at the point of takedown it was accurate, but the person posting it has, as you said, the full right for takedown. I've posted it accurately. It remains accurate and I want it down. I simply don't want to share that information anymore. However, someone in the meantime has taken that information and put it somewhere else.

What do you see as my right in a situation like that to remove something that I've put up that is and remains accurate?

[Daniel Therrien]

Accuracy would be a factor, but the freedom of expression of the second person would have to be considered in that situation. Therefore, the right of takedown would not be absolute. There would need to be some consideration of the expressive rights of the second person before the request would have to be verified.