Summary: This discussion paper is intended to address the following question put forward in the OPC’s consultation paper on online reputation: “Can the right to be forgotten find application in the Canadian context and, if so, how?” The author is of the view that the right to be forgotten cannot be shoehorned into existing privacy law because search engines do not come within the scope of PIPEDA and the activity of indexing newsworthy content online is subject to the journalism exception in PIPEDA. Furthermore, any attempt to compel a search engine to not include particular results -- particularly pointing to lawful content -- would fall afoul of the freedom of expression right under the Canadian Charter of Rights and Freedoms. The paper concludes with some additional thoughts that will need to be factored into the discussion of the right to be forgotten in Canada.
Are search engines and the results they produce subject to PIPEDA?
Are search engines engaged in “commercial activities”?
 I conclude that, on a proper construction of PIPEDA, if the primary activity or conduct at hand, in this case the collection of evidence on a plaintiff by an individual defendant in order to mount a defence to a civil tort action, is not a commercial activity contemplated by PIPEDA, then that activity or conduct remains exempt from PIPEDA even if third parties are retained by an individual to carry out that activity or conduct on his or her behalf. The primary characterization of the activity or conduct in issue is thus the dominant factor in assessing the commercial character of that activity or conduct under PIPEDA, not the incidental relationship between the one who seeks to carry out the activity or conduct and third parties... [emphasis added]
Are search engines handling personal information for “journalistic, artistic or literary purposes”?
(2) This Part does not apply to ...
(c) any organization in respect of personal information that the organization collects, uses or discloses for journalistic, artistic or literary purposes and does not collect, use or disclose for any other purpose.
However, the traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists. These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets. I agree with Lord Hoffmann that the new defence is “available to anyone who publishes material of public interest in any medium”: Jameel, at para. 54. …
 A review of recent defamation case law suggests that many actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. [emphasis added]
[para 19] Webster’s New College Dictionary defines “journalistic” as “Of, relating to, or typical of journalists.” “Journalism” is defined as:
1.Collection, writing, editing and dissemination of news through the media 2. Material written for publication in the media 3. A style of writing used in newspapers and magazines, characterized by the direct presentation of facts or occurrences with little attempt at analysis or interpretation.
[para 20] The personal information disclosed was in the form of a newspaper article which was published by the Organization. This in itself meets the definition of “material written for publication in the media”. Having reviewed the newspaper article itself, the personal information within it is a direct presentation of the facts and is clearly collected and disclosed for journalistic purposes. There is no evidence before me or any evidence from the newspaper article itself that would lead me to conclude that the collection, use and disclosure of the personal information was for any other purpose other than for journalistic purposes.
[para 22] However, my authority under the Act is to determine whether the collection, use or disclosure of personal information was for journalistic purposes only. Once I have established that the use of personal information was for journalistic purposes only, the Act does not apply and my authority to decide any other issue ceases. Any inquiry into what is a reasonable collection, use and disclosure of personal information, can only come into play if I have jurisdiction to proceed under the Act. In this case, I have determined that the Act does not apply to the matter in question and I can go no further.
Freedom of Expression under the Charter
Supplementing this approach is the presumption that Parliament intended to enact legislation in conformity with the Charter. If a legislative provision can be read both in a way that is constitutional and in a way that is not, the former reading should be adopted. [citations omitted]
The question we must answer is whether that limitation is reasonable and demonstrably justified in a free and democratic society. To justify the intrusion on free expression, the government must demonstrate, through evidence supplemented by common sense and inferential reasoning, that the law meets the test set out in R. v. Oakes,  1 S.C.R. 103, and refined in Dagenais v. Canadian Broadcasting Corp.,  3 S.C.R. 835, and Thomson Newspapers Co. v. Canada (Attorney General),  1 S.C.R. 877. The goal must be pressing and substantial, and the law enacted to achieve that goal must be proportionate in the sense of furthering the goal, being carefully tailored to avoid excessive impairment of the right, and productive of benefits that outweigh the detriment to freedom of expression.
(a) Is the limitation prescribed by law?
(b) Is the legislative objective pressing and substantial?
(c) Is there proportionality between the limitation on the right and the benefits of the law? This requires answering the following questions:
(i) Is there a rational connection between the legislative objective and the means in the law meant to achieve that objective?
(ii) Is the right in issue “minimally impaired”?
(iii) Is there proportionality between the deleterious and salutary effects of the law?There is certainly an argument to be made that RTFB fails on all counts, but the Charter question will likely hinge on the proportionality analysis.
3. The purpose of this Part is to establish, in an era in which technology increasingly facilitates the circulation and exchange of information, rules to govern the collection, use and disclosure of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances.
 These purposes are reflected in the long title of PIPEDA [emphasis added]:An Act to support and promote electronic commerce by protecting personal information that is collected, used or disclosed in certain circumstances, by providing for the use of electronic means to communicate or record information or transactions and by amending the Canada Evidence Act, the Statutory Instruments Act and the Statute Revision Act.
 The collection of information in order to properly defend a civil tort action has little or nothing to do with these purposes.
 There is no dispute that PIPA has a pressing and substantial objective. The purpose of PIPA is explicitly set out in s. 3, as previously noted, which states:
3 The purpose of this Act is to govern the collection, use and disclosure of personal information by organizations in a manner that recognizes both the right of an individual to have his or her personal information protected and the need of organizations to collect, use or disclose personal information for purposes that are reasonable.
As the second step in the proportionality analysis, the government must show that the measures at issue impair the right of free expression as little as reasonably possible in order to achieve the legislative objective. The impairment must be “minimal”, that is, the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement . . . On the other hand, if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail.
102 This brings us to the third and final branch of the proportionality inquiry: whether the benefits the law may achieve in preventing harm to children outweigh the detrimental effects of the law on the right of free expression. The final proportionality assessment takes all the elements identified and measured under the heads of Parliament’s objective, rational connection and minimal impairment, and balances them to determine whether the state has proven on a balance of probabilities that its restriction on a fundamental Charter right is demonstrably justifiable in a free and democratic society.
 PIPA’s objective is increasingly significant in the modern context, where new technologies give organizations an almost unlimited capacity to collect personal information, analyze it, use it and communicate it to others for their own purposes. There is also no serious question that PIPA is rationally connected to this important objective. As the Union acknowledges, PIPA directly addresses the objective by imposing broad restrictions on the collection, use and disclosure of personal information. However, in our view, these broad restrictions are not justified because they are disproportionate to the benefits the legislation seeks to promote. In other words, “the Charter infringement is too high a price to pay for the benefit of the law”: Peter W. Hogg, Constitutional Law of Canada (5th ed. Supp.), vol. 2, at p. 38-43.
Separation of powers - Constitution Act, 1867
- The impugned legislation must be part of a general regulatory scheme.
- The scheme must be monitored by the continuing oversight of a regulatory agency.
- The legislation must be concerned with trade as a whole rather than a particular industry or commodity
- The legislation must be of such a nature that the provinces, together or independently, would be constitutionally incapable of enacting it.
- The failure to include one or more provinces or localities in a legislative scheme would jeopardize the successful operation of the scheme in other parts of the country.
Who is the decision maker?
Content providers’ rights
Reviving forgotten information
17 Freedom of expression protects not only the individual who speaks the message, but also the recipient. Members of the public — as viewers, listeners and readers — have a right to information on public governance, absent which they cannot cast an informed vote; see Edmonton Journal, supra, at pp. 1339-40. Thus the Charter protects listeners as well as speakers; see Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC),  2 S.C.R. 712, at pp. 766-67.
18 This is not a Canadian idiosyncrasy. The right to receive information is enshrined in both the Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), and the International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47. Canada is a signatory to both. American listeners enjoy the same right; see Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367 (1969), at p. 390; Martin v. City of Struthers, 319 U.S. 141 (1943), at p. 143. The words of Marshall J., dissenting, in Kleindienst v. Mandel, 408 U.S. 753 (1972), at p. 775, ring as true in this country as they do in our neighbour to the south: [T]he right to speak and hear — including the right to inform others and to be informed about public issues — are inextricably part of [the First Amendment]. The freedom to speak and the freedom to hear are inseparable; they are two sides of the same coin. But the coin itself is the process of thought and discussion. The activity of speakers becoming listeners and listeners becoming speakers in the vital interchange of thought is the means indispensable to the discovery and spread of political truth. [Citations omitted.]