The internet never forgets. But should it? That legal battle is raging in Canada and worldwide 

The web’s hive mind has a long memory — and a mean streak — which can be a serious problem for anyone trying to move past an ugly divorce, a criminal record, a bankruptcy or a foolish mistake. For years, officials turned a blind eye to the problem, declaring the web a wild and unruly frontier.


But now, two decades after the advent of Google (the domain was registered on Sept. 15, 1997), courts and regulators are increasingly asking the question: Should the internet’s cache of damaging personal data be made to disappear at some point? Or should it remain in place forever, burned onto the online presence of the once guilty like some kind of digital scarlet letter?


Those who argue for a best-before date call it “the right to be forgotten” and say it should be a fundamental tenet of the digital age.


But free speech advocates contend that enshrining the right in law will diminish the revolutionary power of the web by creating “black holes” where information can disappear.


“There are two competing interests at the heart of almost everything that goes on online,” says Montreal lawyer Allen Mendelsohn, an internet law specialist. “In the simplest terms: It’s your right to your reputation versus the other person’s right to freedom of expression.”


Europe and Argentina are among the jurisdictions that have already recognized an individual’s right to be forgotten.The issue has played out for years in Europe, where regulators are now wrestling with the thorny question of how to enforce removal orders on the transnational, shape-shifting web.


In May 2014, the European Union’s highest court ruled that Google must remove links to damaging personal information deemed inadequate, irrelevant or excessive.


The ruling — based on the complaint of a Spanish man who wanted Google to remove links to a 1998 news story about his bankruptcy —said search engines were data “controllers,” not just neutral conduits, and therefore had a responsibility to cleanse unfair and damaging information.


In its wake, Google received a deluge of requests for cache removals from EU residents: more than 735,000 people filled out the company’s digital application form.It has since delisted 1.1 million search results inside the EU, according to the company’s public transparency report.


France’s data protection agency, however, said that wasn’t good enough, and it has ordered Google to censor those same links worldwide so that someone conducting a search in Canada, for instance, couldn’t find information unavailable in the EU. (Google Search uses different domains for different countries: Canada is, Germany is, Spain is, Australia is, the U.S. is


The company says the case has profound implications for the free flow of digital information.Google has challenged the order to France’s Conseil d’Etat, which in July referred the issue to the EU’s top court.


“If French law applies globally, how long will it be until other countries – perhaps less open and democratic – start demanding that their laws regulating information likewise have global reach?”


Google general counsel Kent Walker wrote in a recent blog post.

Information that is legal in one country, he said, is verboten in another: “Thailand outlaws insults to its king; Brazil outlaws negative campaigning in political elections; Turkey outlaws speeches that denigrates Ataturk or the Turkish nation.”

He warned that the case, if upheld, could trigger “a global race to the bottom.”


Google is already in an uncomfortable situation. By recognizing the right to be forgotten, European courts have handed the multinational the judge-like responsibility of weighing individual privacy rights against the public’s right to know.


Google officials have reviewed more than two million EU web addresses (URLs), and have decided to remove 56.9 per cent of them.


The company provides examples of the decisions it faces, but it does not set out hard and fast rules for removals, nor does it explain how its officials balance public versus private interests.


The Global Commission on Internet Governance, an independent think-tank led by former Swedish prime minister Carl Bildt, decried that state of affairs in a 2016 report: “Private companies — as opposed to courts and legislatures — are only accountable to their shareholders; they should not be the arbitrator on how to weigh fundamental rights and public interests.”


Courts around the world are now wrestling with issues raised by privacy on the internet, and Canada is no exception.


In January, the Federal Court of Canada issued a judgment that excoriated Sebastian Radulescu, the owner of the website, as someone who “has essentially made a business of exploiting the privacy of individuals for profit.”

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