OPC’s deindexing position ‘indirect attack’ on CBC, lawyer says

OTTAWA — A lawyer for CBC/Radio-Canada who is asking the Federal Court to allow it to intervene in a case that could determine if the Office of the Privacy Commissioner (OPC) can order search engines to delist results said allowing deindexing would harm the public broadcaster’s ability to educate the public. “The minute the CBC sees one of its reports be deindexed through PIPEDA, it’s an indirect attack on CBC through a law that doesn’t apply to it,” Christian Leblanc, counsel to the CBC, told a judicial officer on Monday. He said the OPC is “indirectly applying” the Personal Information Protection and Electronic Documents Act (PIPEDA) to the CBC. “The media are the ears and the eyes for the people; we’re here to ensure they get the information, therefore the impact on us is an impact on the public.” The catalyst for the case hearing sprung last year when the OPC requested a judicial review of whether PIPEDA applies to search engine de-indexing after Alphabet Inc. said it didn’t, according to the OPC. On Monday, the court heard arguments about why prospective intervenors the Media Coalition and the CBC should be allowed to participate in a future hearing on the matter of PIPEDA's authority over search engine deindexing. Early last year, privacy commissioner Daniel Therrien said that a search engine de-indexing right exists in Canada. The office’s draft position states PIPEDA applies to search engines and that individuals can challenge search results involving their names on grounds such as accuracy and completeness — a position some have compared to the ‘right to be forgotten’ in the European Union’s General Data Protection Regulation (GDPR). The court reference Therrien seeks “will seek a determination as to whether Google’s search engine service collects, uses or discloses personal information in the course of commercial activities and is therefore subject to PIPEDA, and whether Google is exempt from it because its purposes are exclusively journalistic or literary,” his report said. “For my client, this case is one of the most important freedom of expression cases we’ve seen in recent years,” Leblanc said. Leblanc said Google is not in a position, alone, to defend those media interests. He said the broadcaster, and other media parties, simply can’t be at the whim of Google’s “fighting spirit” to defend those interests when it likely has other issues it needs to look at. Google’s counsel said Monday that it supports having media parties as intervenors. Peter Engelmann, who is counsel to the OPC, said his side doesn’t take a position on having media intervenors, so long as their roles as intervenors are limited. Another counsel for the OPC said those limits should be kept to written submissions and oral arguments. In any case, Engelmann argued that much of what the prospective intervenors argued was premature, partly because the OPC report is currently just a draft proposal. A House of Commons committee report recommended last year that the government consider adding a framework in PIPEDA to set out a clear “right to erasure” that, at minimum would allow young people to “have information posted online either by themselves or through an organization taken down,” and for the “right to de-indexing” of information posted online by people when they were still minors. A survey earlier this year found most Canadians support setting out a right to be forgotten provision in the law. — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

OPC’s deindexing position ‘indirect attack’ on CBC, lawyer says

Broadcast | February 11, 2019

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OPC’s deindexing position ‘indirect attack’ on CBC, lawyer says

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