This is… an editorial? A thought piece? Commentary? Anyway it’s some words about the Right to be Forgotten

Hello! Let’s try something new today – me talking out of my ass. Shut up, my other posts are not me talking out of my ass. They are a combination of me recapping an important court decision or newsworthy item AND me talking out of my ass. This post will just be that second part. Fun! But there is some context, lemme explain.

So this past Friday I attended a pretty darn cool and informative legal conference. The conference was called “Privacy Revolution”, and it was organized by McGill’s Centre for Intellectual Property Policy (the “CIPP”). Full disclosure, it it’s needed, I am an Associate Member of the CIPP. Makes no difference for the crap I am about to spew out. Probably if anything they will kick me out.

Anyhoo, back to the conference. It was an incredible afternoon where there were two panels, one on the Right to be Forgotten (hereinafter the “RTBF” because I am writing this on a Sunday and I am lazy), and one on privacy class action lawsuits. The class actions one was quite interesting, given the rise of data breach lawsuits (your Equifaxes and Ashley Madisons for example) but it was the RTBF panel that was the show-stopper. The panel was filled with privacy experts who had extensive knowledge and opinions on the RTBF. I am sure you are asking yourself, “Hey Al, isn’t that you? Why weren’t you on the panel?” Shut up is why. In all seriousness, here were the privacy experts on the panel:

• A former Privacy Commissioner of Canada;
• A privacy expert at a major Canadian law firm;
• A university associate dean and privacy expert with a PhD; and
• A university professor with a Doctorate of Laws and expertise in tech and privacy law that I can only dream of.

I am none of those things. As I wrote on Twitter, this was a lineup I just couldn’t crack. BUT! I do have some expertise in the RTBF; I teach it in my McGill Law class! That’s… something. Oh wait a minute, I was interviewed by the CBC about it. Oh and I was the featured lawyer in a CBC National documentary about it. Oh and I was the featured lawyer in a major Ottawa Citizen story about it. My RTBF tag here at AM.com has 7 entries (now 8). But what do I know.

ANYWAY the conference was amazing. A really good legal discussion and debate about the RTBF, and should we have one, and do we have one, and how it might work if we did have one, and all sorts of related questions. I have discussed many of these issues in those 7 entries on the RTBF here at AM.com already. Sort of. During a break from the conference, as I was chatting with one of the panelists, they asked me “what do you think about the RTBF?” It occurred to me I have never really spewed out my true thoughts out of my ass, in one glorious post. So let’s do this.

I’d like to go back to some of my things on the record already. In the Ottawa Citizen piece, I said this:

“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.”

So remember that. Then, to the CBC, I said this:

Internet lawyer Allen Mendelsohn worries about the “slippery slope” implied in a right to be forgotten. He said he was once opposed to the idea but now supports it in a limited form — as long as it is carefully balanced with the right to free expression.

Talk about sticking to your talking points! My goodness I am media-savvy. But that’s besides the point. The point is (at this point) is that you have your right to your reputation, and a RTBF is part of that. If something crappy happened to you 20 years ago that is damaging your reputation, should you be able to scrub it from the internet?  Sure, if it’s a bunch of bullshit lies made up by some jilted ex-lover, I think most of us would say you should be able to remove it from the internet. But what if the thing is a fact that’s true? What if the thing is someone’s opinion about you, like “Allen Mendelsohn is an asshole and a crappy lawyer”? But maybe that’s true? Maybe it’s a lie? The person who wrote that about me (how could you mom?) has a right to express him- or herself. You see why the RTBF is fraught with risks and issues.

If you go back to the original RTBF case (what we call the “Google Spain” case), the “thing” at issue that the plaintiff wanted removed (or technically “de-listed”, we’ll get to that) was a true fact – a Spanish newspaper article about the guy’s debt proceedings, 16 years before he asked Google to stop linking to that article (which the Court eventually ordered). As I wrote about the case in 2014, I was very skeptical:

I am sure you can tell by my tone (well maybe not, my tone is always like that) I am not a fan of this decision (…) the case is still a load of crap

Don’t hold back, younger me!

I don’t really have a problem with the right to be forgotten, but what about competing rights? What about the right of the Googler to know? What about the right of the publisher to publish, to freedom of expression? These competing rights are barely mentioned in the judgment.

That is very true, and that is the heart of the debate right now (the competing rights, as I mentioned in my media-savvy talking points above). Also:

The Court didn’t order the newspaper to remove the info. Google is just a bunch of computer robots that scour the web and make links. And now Google has to be the guardian of the internet? They have to decide what is no longer relevant or that well, 10 years is just too long ago?

All of these issues are still present today. All of them were brought up at the CIPP conference in one way or another. This last point about Google is important, because it hints at the distinction between a true “RTBF” and what has since been called a “de-listing right” or a “de-indexing right”. That means the actual “thing” won’t be removed from the internet, just a link to the thing from a search engine (Google… or Bing, ha), particularly when you search a person’s name. When the Office of the Privacy Commissioner magically found a RTBF last year, it specified that it really was only a de-indexing right. The RTBF that is now enshrined in European law in the GDPR includes both removal of the original content and links thereto. I am not sure what my point is here, so let’s move on. I guess I just want you to know there are two separate but related things here, or as the OPC puts it, the de-indexing right is part of the RTBF.

The other issue of the RTBF brought up at the conference was the territorial jurisdiction issue. If we are looking to the courts of Canada to enforce a RTBF, can those courts make orders that have effect on companies not in Canada? Can they force Google to de-index worldwide? Normally you would think not. But you’d be wrong! You may recall in the Equustek case the Supreme Court ordered Google to de-list worldwide (though in an intellectual property context), and then a California court said our Supreme Court is stupid. But the fact is the Equustek case is an indication that in internet matters, courts are willing to extend their reach, as Michael Geist recently explained very nicely. But the worldwide nature of the internet is always going to be a problem for the RTBF’s effectiveness and / or enforcement by national laws and courts.

One other issue about the RTBF is something called Section 230 of the Communications Decency Act, an American law. How many law sections have their own Wikipedia page? That tells you how important it is. What s. 230 CDA does is give internet companies immunity from liability for stuff third parties put on their platforms. So Facebook isn’t held responsible for the crap a user posts on it. It’s also why you can’t get something removed from The Dirty (NSFW-ish), because it was a third-party who put up that crap. S. 230 would effectively prevent a RTBF including a de-indexing right being effective in the U.S. That’s where the internet companies are! S. 230 was the reason that California Court told our Supreme Court to go to hell and said the worldwide order could not be enforced in the U.S.

So far all I have done is recap a bunch of crap. Recapped the issues and defined the terms. I know you are breathlessly awaiting for the talking out of my ass part. Here we go. In my original post about the RTBF, in the same part where I was bashing the decision, the younger me had also written this:

Now, don’t get me wrong, it may be useful to me in the future. I am inundated by requests from potential clients who want me to help them get embarrassing or other unpleasant stuff about them removed from the internet

In the five or so years since I wrote that, the younger me has become the older me, and the word “inundated” could be replaced by “overwhelmed”. And the words “embarrassing or unpleasant stuff” should be replaced by “stuff that has destroyed someone’s life, whether personally or professionally”.

That’s the difference between me, a practicing attorney who gets calls from people, and the academics sitting in ivory towers screaming about freedom of expression and we have to leave everything on the internet. I hear from people. Real people. People who have had their lives destroyed because of some crap an ex-boyfriend posted, or a vengeful ex-employee. People who cannot get a job because the search results for their name brings up a bunch of old crap that frankly should best be… forgotten.

Had you asked me when I started out as an internet law specialist some eight-odd years ago, I would have said a RTBF is stupid. The great thing about the internet is that it was open to all, the ultimate democracy. I was a true libertarian in that sense. Information should be free to all. Freedom of expression should not be curtailed. I still believe all that, but there has to be some protection for those people who contact me. I have told enough of them “I am sorry your life is in shambles because of that thing on the internet, but there is nothing I can do about it”. I am tired of being helpless to those people.

I freely admit those issues I have identified above are not going away. Freedom of expression must be protected. If you look again at the GDPR’s RTBF, it specifically says freedom of expression must be considered. Courts do balancing exercises all the time. Copyright law for example is always presented as a balance between varying interests. The courts just deal with it. We can deal with it with the RTBF.

And yes, I still don’t particularly want Google to be guardians of the internet. But what choice do we have? And frankly Google is already the guardian of the internet. Let the people who need help have some tool to go to Google and get some action, like they do in Europe. Google makes billions of fucking dollars off search; let them spend some of that helping people. If Google doesn’t work out, fine, you should be able to go to the courts.

Yes, issuing worldwide orders is problematic. But enough already with traditional views of national legal systems in the virtual world that is no longer contained by borders. I once sat down with some reporter (I forget when or who it was) and described how I think there needs to be an international internet court (the “IIC” has a nice ring to it!). The reporter was intrigued. It’s not an original idea from me, but I didn’t tell him that! But the point is that’s not happening in my lifetime, so national courts need to be able to fill the void.

Section 230 is a real problem; but everyone knows that. There are indications it’s being changed. Facebook and Google can’t keep hiding forever!

So anyway, we need something here. Canada seems to be recognizing it. As mentioned, the OPC found a de-indexing right and is moving forward with its legal reference that will help prove it. A Parliamentary Committee says we should have something. 3 out of 4 panelists at the conference seemed to say we should have something. On behalf of all those people who contact me, I say we should have something.