In today’s digital age, the “right to be forgotten” – essentially, the right to withdraw consent over the processing of one’s personal information – is being hotly debated around the world, and it is now gaining momentum in Canada.

The Spanish case

The test case for this ground-breaking ruling originated in Spanish jurisdiction after the Spanish lawyer in question failed in his attempts to get Google to remove links to two old local newspaper publications related to his prior bankruptcy.  Published at the order of the Spanish Ministry of Labour and Social Affairs, the webpages in question referenced two notices announcing that a real estate property he owned was to be put up for sale at auction so that he could pay off his outstanding social security debts. Given that he had since paid off these debts, the Spanish lawyer wanted that information altered or cast into oblivion.

To accomplish his goal, he filed a complaint with the Spanish Data Protection Agency (AEPD) against the newspaper (namely, its website), Google Spain, and Google Inc. arguing that the information of the legal proceedings contained in the newspaper’s publications was no longer relevant. He contended that those items concerned matters that had already been fully resolved and that their ongoing online presence was infringing his right to privacy and harming his reputation. As it turned out, the AEPD dismissed his claim against the newspaper publication, reasoning that the original information therein had been lawfully published, but it granted the action against Google. Unhappy with the AEPD’s decision, Google Inc. and its subsidiary, Google Spain, filed two separate appeals before the National High Court in Spain to have it annulled.

The Spanish court, in turn, referred a specific set of applicability questions concerning this matter to the CJEU. And, as we now know, the top European court ultimately ruled in favor of the Spanish lawyer. Accordingly, the Luxembourg-based CJEU held that, under existing European data protection laws, Google had to remove links to webpages referring to his outdated and no longer relevant bankruptcy record. The newspaper, however, could leave information about the auction on its website (under European data protection law, news websites, considered as part of the media, enjoy various protections and exemptions). The court’s ruling also made it clear that Internet search engines such as Google function as “data controllers,” and, as such, they must take responsibility for the links they make accessible online.

In brief, the CJEU concluded that, as a rule, an EU citizen’s right to privacy outweighs Google’s economic interest as well as the “interest of internet users” to access old and irrelevant information.

Parallel movement

In ironic parallel to the right to be forgotten movement, thousands of people, also in Spanish jurisdiction, are fighting to “remember” the truths of their country’s uncomfortable past. They are seeking to overturn an amnesty law that pardons crimes – including mass killings, disappearances, torture, and arbitrary detentions – committed during the 36-year dictatorship of General Francisco Franco. Stories about some of the victims of those crimes are featured in the award-winning documentary "The Silence of Others," which was screened at the 2018 Hot Docs International Documentary Film Festival.  To read more about the documentary and an interview with the film's directors, click .

To offer some historical context: in 1977, Spain passed the controversial amnesty law, which formalized an unwritten “pacto del olvido” (“pact of forgetting”). This was reached by the nation's left and right parties following Franco's death, to ease transition into democracy. In line with that pact, Spain’s political leaders effectively agreed to leave memories of those crimes in the distant past.

It is not known whether Google has received takedown requests from anyone accused of having committed crimes in Spain during the Franco era. Google did not respond to several queries about this matter.

Traditionally in Europe, the protection of privacy has been emphasized over that of freedom of speech. In the United States, by contrast, regulators have strongly favored the protection of freedom of speech.

As for implications, the right-to-be-forgotten ruling has implications beyond Spain. Indeed, it has global reach.

Now in Canada

In Canada, the right to be forgotten has attracted similar attention and controversy. Unlike the US originalist constitutional framework, Section 1 of the Canadian Charter of Rights and Freedoms already anticipates that in certain circumstances it will be reasonably necessary to limit the rights and freedoms guaranteed by the Charter. Thus, the recognition of a new right, like the right to be forgotten, which may abridge the constitutionally guaranteed right to free expression, is not very far-fetched in Canada.

Indeed, in January 2018, the Office of the Privacy Commissioner of Canada (OPC) released its draft position paper on online reputation, suggesting that current federal privacy legislation already provides an avenue for the adoption of a similar law in Canada. The Personal Information Protection and Electronic Documents Act (PIPEDA), according to the OPC’s position paper, provides a right to de-index search results and a similar right to source takedown.

Privacy Commissioner Daniel Therrien voiced his support for his office’s position at a recent symposium on the right to be forgotten called, “” in Toronto. The event was sponsored by Google and organized by the Canadian Journalism Foundation (CJF) and the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC). An audio recording of the symposium can be accessed and .

(Photo of Daniel Therrien © Canadian Journalism Foundation)

Therrien's basis for this position is a belief that the Internet has fundamentally changed the ways in which we interact with and process information.  In particular, information about others is easier to find, easily taken out of context and easily reproduced. At the same time, serious consequences emerge from privacy violations that pose a threat to a person’s reputation. Indeed, Therrien expressed concerns for the potentially detrimental consequences that reputational damage can have in terms of employment and housing, as well as personal and professional relationships.

Enter the elephant in the room

Peter Fleischer, Google’s global privacy lawyer, also speaking at the Toronto symposium, introduced the elephant in the room. Fleischer did not hide his disdain with the right to be forgotten decision.

Fleischer argued that the right to be forgotten is not only incompatible with the right to freedom of expression but is a total breach to this right. Freedom of expression is considered one of the cornerstone features of any modern democratic society. Indeed, freedom of expression is widely held as a means of furthering three core values: (1) acquiring the truth; (2) fostering individual autonomy and self-determination; and (3) strengthening democratic self-governance. It is on these fundamentals that Peter Fleischer rests his case against the recognition of the right to be forgotten.

Constitutional arguments aside, one of the most interesting pieces of information that came out of this symposium was finally getting a window into how the right to be forgotten is implemented, something  the general public had limited information on up until this point. As the European mandate currently stands, it is search engine operators themselves who are tasked with creating a governance framework for the right to be forgotten. So, while many may have expected, or at least hoped, that it would be the courts or some other privacy-related administrative body that would be tasked with making decisions regarding what content would be de-indexed at the request of an individual, this is not the case.

Indeed, Fleischer explains the responsibility for overseeing the administration of the right falls exclusively on the shoulders of the search engines.

An individual seeking to exercise their right to be forgotten must complete an online web form, after which the form will go to a team at Google specifically established to deal with this matter. The team of legal professionals at Google are essentially tasked with weighing the competing interests implicated in each case. Fleischer explains this is no easy task as the nature of the balancing exercise makes automation highly unlikely. While some cases can be assigned an easy “yes” or “no”, others fall into a grey zone where the answer is not immediately apparent. For such ambiguous cases, Google has an internal process that allows for escalation to more senior professionals who will make the final decision.

(Photo of Olivia Mackenzie and Peter Fleischer © Canadian Journalism Foundation)

Food for thought

Over the next coming months, it is expected that, with the support of Daniel Therrien, we will see considerable movement towards a Canadian version of the right to be forgotten. At the same time, we should ask ourselves whether the search engines themselves are in the best position to oversee implementation. Besides the obvious self-interest concern, this task is also very resource intensive. According to Fleischer, there have been 650, 000 requests pertaining to 2.5 million URLs across the EU to date. So, by outsourcing oversight, do we risk putting smaller search engines with fewer resources out of business? This is one of many questions to consider during this time in limbo.

Roxana Olivera is a Journalist in Residence at Osgoode Hall Law School. Olivia Mackenzie is a JD Candidate at Osgoode Hall Law School. The authors would like to thank Osgoode students Natasha Jerome, Ankita Nayar and Carolyn Young for their assistance.

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However, also in Spain, scores of people are fighting against the erasure of their country’s hideous past. They are seeking the right to “remember” the truths about the Franco-era crimes. Stories about some of the victims of those crimes are featured in the award-winning documentary The Silence of Others, which was screened in Toronto at the 2018 Hot Docs International Documentary Film Festival.

The Silence of Others chronicles the story of the victims of Spain’s 40-year dictatorship under General Francisco Franco and their ongoing quest for justice. Filmed over seven years, their story is brought to life through magnificent cinematography and masterful storytelling. In the process, directors Almudena Carracedo and Robert Bahar amassed 450 hours of footage filled with voices of despair and hope.

“How unjust life is… Not life. We humans… we are unjust,” reflects an 80-something-year old woman by the name of as she sits by the roadside where her murdered mother’s nude body was ditched by Franco’s local militia eight decades ago. Ascención Mendieta, on the day of her 90^th birthday, flies from Madrid to Buenos Aires in her tireless mission to have her father’s remains unearthed from a mass grave. Also in Madrid, José María “Chato” Galante lives a stone’s throw away from his former torturer. What’s more, tens of thousands of women today are still searching for children stolen at birth, decades after Franco’s death.

The Silence of Others is not only a history lesson on the Franco era, it is also a lesson on the principle of universal jurisdiction in international law. Spanish courts have made use of universal jurisdiction to prosecute cases of crimes against humanity committed in Argentina, Chile, Guatemala and El Salvador.  Eighty years on, however, Spain is reluctant to reckon with its fascist past. Franco died in 1975. Two years after his death, Spain passed an amnesty law, known as the “pact of forgetting,” that pardoned the crimes of the Franco regime. Today, victims and relatives of Franco’s crimes are seeking to annul the controversial amnesty law and to prosecute Franco’s surviving lackeys in Argentinian courts.

The Silence of Others won the Audience Award for Best Documentary at the Berlin International Film Festival. At the Hot Docs festival in Toronto, Carracedo and Bahar received standing ovations at their film’s screenings, where Osgoode Hall Law School's journalist in residence, caught up with them to ask a few questions.

How was The Silence of Others born?

Almudena Carracedo (AC): Firstly, on a personal level, this is a story that my generation in Spain had somehow left buried in the past. That bothered me a great deal and eventually I felt the time had come to confront it. Secondly, when the story of Spain’s “stolen children” began to come out in 2010, and it became clear that the story of those crimes had been occurring throughout the Franco era, we began to follow stories of mass arrests, torture, forced disappearances and extra-judicial killings.

Robert Bahar (RB): I’ll just add an international perspective. In the United States, we study a little about the Spanish Civil War. We learn about Guernica and Hemingway, but we really don’t know much about the dictatorship that took place forty years afterwards. And we certainly did not learn anything about the amnesty law and the decision to forget.

So, this kind of situation immediately made us think of the Truth and Reconciliation Commission in South Africa and truth and reconciliation processes in other countries emerging from repressive regimes. So, we wondered: how could it be that Spain had had no Nuremberg Trials, no Truth and Reconciliation Commission; that there had been no consideration for justice and reparation for the victims; that no one had considered what should happen to perpetrators; and, above all, how do we guarantee that these things will not be repeated? And so, if you have that frame and the fact that there had been no attempt to deal with the situation in Spain and that there were victims whose stories were unfolding in the film, there was a very powerful desire to tell that story. So, we began filming the process of the “Argentine lawsuit.”

Spain was instrumental in enabling the prosecution of cases of crimes against humanity in Chile, Argentina and elsewhere. Demands for justice for the victims of Franco’s crimes are being denied on the basis that there is a statute of limitations on those crimes. This appears to be a contradiction. How has the Spanish public reacted to this contradiction, which is very clearly illustrated in your film?

AC: Unfortunately, there is a tendency to judge other countries for their crimes – particularly countries of the global south – and to overlook crimes committed within your own territory… In Spain, people were absolutely scandalized about the case involving Argentina’s 500 stolen children, but in Spain we are talking about, at a very minimum, 30,000 cases which were registered up until 1952. Now, just imagine the number of cases registered from 1952 up to the 1980s!

Therefore, one of our goals in making this film is to let Spanish society find out what happened in their own country… What do we do about all this now, in 2018? What do we do about the tens of thousands of people who don’t know who their parents are or that they had even been stolen? What do we do about the more than 100,000 people that were secretly buried in mass graves? What do we do about the people who were victims of torture? And what do we do about their torturers who freely walk the streets?  We sincerely believe that people in Spain are democratically mature enough to face all this.

Many people argue it is time to turn the page and leave the past behind. So, why tell that story now?

AC: People who argue that it is time to turn the page and that one ought not reopen old wounds don’t suffer from those wounds to begin with. Let’s be clear, the surviving victims of Franco’s crimes are still suffering from those wounds as they were never afforded the chance to heal from them in the first place.

RB: In addition, the social movement that was growing and led to this movement -- which we were fortunate enough to document -- also reflects that this is the moment in which these questions can be addressed. Today, I think that young people in Spain are ready to reckon with its bloody, divided past… Many of them feel that they had been robbed of their own history.

There is also a sense of urgency. If you look at the ages of the victims and of perpetrators you realize that you probably have between five and twenty years to deal with this situation.

This is a story that will resonate in Spain and around the world… We have received requests to screen our film in Colombia, Algeria, Lebanon, the Balkans and Sri Lanka where there are transitional post-conflict kind of processes taking place. In many ways, the film tackles important questions about the search for truth, justice, reparation, non-repetition, and it offers a model of how a small group of victims can sit at a kitchen table – in this case, at the home of counsel Carlos Slepoy – to organize and use universal jurisdiction when their own government won’t pursue crimes committed in their own countries.

While the film’s protagonists appear to be fighting for the “right to remember,” there are many people in Spain who are currently fighting for the “right to be forgotten.” Indeed, the landmark “right to be forgotten” case originated in Spain. How does this story fit in with the so-called “right to be forgotten”?        

José María “Chato” Galante: There is absolutely no connection. As far as the “right to be forgotten” is concerned, the Spanish lawyer with unpaid debts appeared before the courts and went through the legal channels where he eventually received his sentence, etc. In our case, we are seeking access to justice. We are asking that our cases for crimes against humanity be heard in a democratic court; that our perpetrators be brought to justice to be tried and legally prosecuted; and, if found guilty, that they be convicted for those crimes.

After forty years of being denied access to justice, we are essentially being asked, or rather forced, to forget and even to forgive those who tortured us and those who committed heinous crimes against us. We are asked to do so even though the perpetrators of those crimes have not been tried in court. What’s more, we are being forced to forgive even though they have never asked for forgiveness.

Without considering the merits of the case involving the Spanish lawyer, his is one of common criminality. Our case involves crimes against humanity, not common crimes, and therefore they must be tried in court under the laws of universal jurisdiction for crimes against humanity. These crimes cannot be forgotten. Crimes against humanity must be prosecuted, and they must be recorded in history.

Roxana Olivera is currently a Journalist in Residence at Osgoode Hall Law School.

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Internet has changed the way information is communicated and these changes affect individuals’ right to privacy. Current privacy and personal information protection legislations, namely, Section 8 of the Charter, Privacy Act and Personal Information Protection and Electronic Documents Act along with its provincial variations, regulate gathering, use and disposal of personal information of individuals. Common law, also, provides complainants with cause of action in defamation, libel, misappropriation of personality and intrusion upon seclusion. However, in today’s digital age, these existing frameworks do not sufficiently address the issues and concerns of those who use Internet on a daily basis. The widespread use of the Internet and the consequential importance of online reputation, make it a necessity to either look for alternative ways to protect online privacy or improve the existing frameworks.

The right to be forgotten enables individuals to ask for their personal information to be removed from the Internet. This alternative solution has been at work in Europe, and if adopted in Canada, it would widen the scope of the current privacy frameworks. However, the differences between the structure of Canadian jurisprudence and European jurisprudence might impede the adoption of the right to be forgotten in Canada.

Legislations that embody the right to be forgotten, give individuals a right to demand erasure of their information. Arguably, then, these legislations have the potential to be suppressive towards freedom of expression and consequently, s.2(b) rights.

In the case that these legislations are found to be offensive to freedom of expression rights, section 1 of the Charter might be invokes to see whether or not they can be regarded as reasonable limits on rights and freedoms. However, since there are other ways to achieve the same goal as these legislations such as anonymizing published information, employing reputation systems, using expiration dates for personally identifiable data, contextualization and cognitive adjustments, the s.1 analysis might fail on the minimal impairment test.[2]

Further, public policy arguments in favour of adopting the right to be forgotten mostly focus on the rights and freedoms of one party and ignore the competing rights and freedoms of the other party to the dispute or the interest of society at large. Protecting privacy interests of individuals, societal reintegration, ability to redefine oneself and safeguarding one’s autonomy are amongst the reasons proposed for adopting the right to be forgotten.

Arguments against adopting the right to be forgotten focus on this exact shortcoming. These arguments hold that the right to be forgotten should not be adopted because in balancing individuals’ right to privacy against societal good, the latter should be upheld.

Discussion around right to be forgotten involve one prevalent question: Why should an individual have the right to decide what is relevant or irrelevant for other individuals to know or remember? And the answer would be: it depends of the circumstances. For example, in a case of revenge porn, there are strong public interest reasons that justify giving an individual, the complainant, the right to demand removal of such content.[3] However, it is more difficult to see why complainants should be given the same right in cases where, for instance, they have been given a bad online review because of the services they have provided.

Adoption of the right to be forgotten in Canada will be a radical departure from precedent. If the purpose of the right to be forgotten is to safeguard individual’s right to privacy on the Internet, then the right to be forgotten is unnecessary. This is because, as it was discussed, there are other ways to reach the same objective, which are less offensive to competing rights and freedoms.

 Nazli  Jelveh is a JD Candidate at Osgoode Hall Law School.

[1] George Bemis professor of international law at Harvard Law school, professor of Computer Science at Harvard School of Engineering and Applied Sciences and Co-Founder, Director, and Faculty Chair, Berkman Center for Internet & Society.

[2] Michael L. Rustad & Sanna Kulevska, “Reconceptualization of The Right to Be Forgotten to Enable Transatlantic Data Flow” (2015) 28:2 Harvard J of L & Technology 349 at 382-385.

[3] Gabrille Giroday, “Ontario court expands scope of privacy tort to include ‘revenge porn’” (1 February 2016), Legal Feeds (blog), online: < http://www.canadianlawyermag.com/legalfeeds/3104/ontario-court-expands-scope-of-privacy-tort-to-include-revenge- porn.html>.

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