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How the “right to be forgotten” impacts business

The issue is of particular interest to business owners and other professionals, including accountants, who must balance free speech and public interest with the ability to protect their reputation

James Joyce once wrote that a person’s mistakes are “the portals to discovery.” A century later, in this digital era, those portals to discovery have taken on a very different meaning.

Information on a person’s past, if made public, can have a permanent record online and be found through search engines such as Google. A growing number of people and companies are trying to erase their unflattering online history, citing the “right to be forgotten.”

In Britain, at least two businessmen have gone to court looking to have links to articles about their criminal pasts removed from Google, which is fighting the requests. “Search engines can reject applications if they believe the public interest in accessing the information outweighs a right to privacy,” according to a report about the cases in The Guardian.

The lawsuits stem from a 2014 European Union’s court of justice ruling that “irrelevant” and outdated data should be erased on request. Google has since received requests to remove at least 2.4 million links from search results, The Guardian reports.

Canada doesn’t have a “right to be forgotten” law, according to legal experts, but the Office of the Privacy Commissioner of Canada recently released a draft policy position on online reputation, which includes the right to ask search engines to “de-index web pages that contain inaccurate, incomplete or out-dated information,” as well as remove or amend information at the source. The proposal would apply to people, not companies, given that it’s part of the Personal Information Protection and Electronic Documents Act, which is geared to individuals.

The privacy watchdog is also asking the federal government to further study the rights Canadians have to manage their reputations online. “Elected officials should confirm the right balance between privacy and freedom of expression in our democratic society,” the report states.

Michael Geist, the Canada Research Chair in Internet and e-commerce law at the University of Ottawa’s Faculty of Law, wrote an article arguing the proposal empowers search engines “to play the role of judge and jury over the relevance and harm associated with links to content.”

The U.K. cases, as well as the debate now playing out across Canada, highlights the ethical risks and ramifications of allowing the removal of unfavourable links online, such as news about past criminal convictions.

The “right to be forgotten” issue is of particular interest to business owners and other professionals, including accountants, who must balance free speech and public interest with the ability to protect their reputation. For example, if a professional was charged with a criminal offence in the past, the public (including a client) arguably has an interest in knowing about it.

“If the news coverage is accurate at the time of publishing … they don’t have to remove it,” says Omar Ha-Redeye, a lawyer with Toronto-based Fleet Street Law, who also teaches law and ethics at Ryerson University. “Even if the results of any investigation demonstrates the person is innocent.”

Some Canadian companies try to use libel and defamation laws, where applicable, to have online content removed. “Sometimes it’s valid, sometimes it’s a bullying tactic to clean up their reputation online,” says Monica Goyal, adjunct professor at Osgoode Hall Law School.

Depending on the circumstance, Goyal says some companies may be better off dealing with the issue online.

“The better strategy is to work on your online reputation rather than putting the money into a court case,” Goyal says. “If you really feel like you’ve been maligned and it’s impacting your business you can go to the court and make your case, but the legal process is expensive.”