I'm very pleased to be back on this committee, which does incredibly important work, certainly with access to information. One of the other key elements is that our committee is the review committee for issues of ethics and ethical breaches.
I want to take a few minutes to let the committee know that I will be bringing a notice of motion regarding the decision by this committee not to invite the to explain his being found guilty of ethical breaches. It is unprecedented in the history of our Parliament for a sitting prime minister to be found guilty. Normally, it is this committee where it would be dealt with. However, the committee overruled doing so, saying that the proper place would be in question period, and I think there was some logic to that.
The problem is that the has not been answering questions in question period. In fact, the Prime Minister skipped question period on Wednesday, which is normally the day he answers questions, to do a town hall in Winnipeg.
We were told that the would be accountable to the Canadian people. We were told he would answer questions. He's refusing to answer the questions, so it has to come back to this committee and all of us to ensure that ethical standards are being held to even in the highest office. Therefore, I will be bringing a notice of motion on Tuesday to that effect.
Ladies and gentlemen, members of the committee, I don't have a formal statement but I will make a few remarks that may situate the debate. I hope this will be useful.
Last week, my office published a draft position paper on the question of online reputation. Of course, the first question that one might ask is why; what is the relevance of this? We have been told by Canadians that they are concerned about the growing risks to their reputation online. We want to provide people with greater control to protect themselves from these reputational risks.
Those risks exist because protecting reputation is increasingly difficult in the digital age. Information about us is systematically indexed and easily accessed and shared. Online information about us can easily be distorted or taken out of context, and it is often extremely difficult to remove.
Our report makes a number of key recommendations or decisions.
First, it says that PIPEDA should be interpreted as providing the right to ask search engines to de-index web pages that contain inaccurate, incomplete, or outdated information. We think there is grounding in the current PIPEDA for that.
Second, there should be removal or amendment of information at the source in certain situations.
Third, and very importantly, we advocate for much more education on this issue, education that we can be part of within our public education mandate. However, we think, on this issue in particular, it would be important that provincial and territorial governments take up our recommendation that privacy should be part of the curriculum in schools so that children are taught at an early age, one, how to protect themselves, and two, how to behave responsibly as online citizens.
While I think there is a legal basis in PIPEDA for the remedies found in our paper, it's also important that this issue be considered by you as elected officials. We know that this is a controversial issue and that a number of people, stakeholders, are of the view that this would unduly impact freedom of expression. We know that. At the same time, it's important that we act, that the OPC acts based on the current law. However, it is a very legitimate issue to examine what the right balance should be between protecting reputation and privacy interests on one hand, and freedom of expression on the other.
When the Office of the Privacy Commissioner drafted the Draft Position on Online Reputation, and more specifically examined the role of de-indexing, we were not attempting to create new rights or powers. Rather, we were attempting to apply the Personal Information Protection and Electronic Documents Act, in its current form. However, as I just said, this raises questions in connexion with respecting freedom of expression. We think it is particularly important that elected representatives, who represent the Canadian population, examine this issue.
In addition to studying the matter of the balance between privacy and freedom of expression, you may want to take advantage of this opportunity to examine certain important natural justice or procedural issues which private sector stakeholders, particularly search engine representatives, have drawn to our attention. More particularly, if a citizen asks a search engine or a private organization to de-index or erase some information, which procedural rights may those entities cite in defence of their point of view in favour of freedom of expression, and against the de-indexing or the removal of information?
One question has already been examined by the committee in its review of PIPEDA. You may also want to examine the effects of possible differences between how these rights are exercised in Canada and in Europe, when studying the adequacy and appropriateness of Canadian legislation as compared to European law.
My last point will be this. I recognize that de-indexing is not necessarily a perfect solution for protecting reputation, but I think it's important to ask because it is important to protect reputation, and I think it's important that I act on the basis of the law that I must administer and enforce. However, there is a question as to whether the law, as it is, is the best means to protect reputation.
As you look at this question, I would ask you to consider what the alternatives are. The first question would be, is it worth protecting reputations? If you agree that it is, de-indexing and takedown are the tools I have under the current PIPEDA. If that's not good, what are the alternatives? There are not many alternatives, but maybe you should consider and hear from witnesses what the alternatives should be.
I want to get into a discussion of de-indexing a little bit and the online reputation report, but we are just finalizing our broader report on PIPEDA and I first want to clarify a few things, in particular with respect to enforcement powers.
We've had some people come before us and say that, if the OPC is given additional enforcement powers and the ability to make orders and issue fines, businesses may be less open to coming forward and co-operating in the first instance with the OPC. I wonder if you could reiterate to this committee what you think the model should be for the OPC under PIPEDA in terms of enforcement powers going forward and what this committee should recommend, in addressing some of the concerns that business have expressed to us.
I don't think that granting the OPC order-making powers would have that effect. I think it would actually discipline the conversations we have with the corporate sector currently if organizations know that their interlocutor has order-making powers. I think it would discipline the conversation.
An important point to make here is that when I ask—and my predecessor asked—for order-making powers, it does not mean, in my view, that order-making would be the first reaction of our office when faced with an allegation or even a finding of non-compliance with the law. My job, I think, is to bring organizations towards compliance with the law, broadly speaking. To impose orders and fines is something that may be necessary in some limited cases with recalcitrants or recidivists, but this is not my first course of action.
My first course of action to bring organizations to comply is to engage with them, to issue guidance on what we think the law provides, to consider initiatives that they may put forward, and to talk to them about how they can function commercially in a way that is compliant with PIPEDA. That's the first and by far the most often used strategy that I think I need to put forward, but there will be a few corporations/organizations that may not be amenable to that engagement. For those, I need order-making to ensure that the law is not moot and actually is applied.
The main constitutional issue that many people talk about is whether the remedies that, I think, exist would contravene freedom of expression. It's a charter issue, and we have looked at this extensively.
I hear that Madame Stoddardt may have expressed views about constitutionality from a division of powers perspective, namely that if we apply federal legislation the way I advocate, this might trample on provincial jurisdiction over property and civil rights, interprovincial commerce, and so on.
As I think you know, the Quebec government years ago launched a challenge to the constitutionality of PIPEDA on that ground, and that has been adjourned and has not been decided.
I would say that that risk exists as soon as you have federal legislation that can be said to trample on provincial jurisdiction, such as over commerce exercised by companies in province A or B. What I advocate would simply be another manifestation of the application of federal law. Maybe it increases the risk that an organization would raise these issues if it is not in agreement with having to comply. However, conceptually, I think we're just applying the federal law as it is. It doesn't change the situation in terms of.... We're not further trampling on provincial jurisdiction; we're just exercising the authority of the federal law, perhaps thereby creating a greater risk, which a company may challenge, but the legal issues would remain the same, I think.
One of the legitimate concerns raised by stakeholder companies is that it should not be up to the private sector—search engines or organizations responsible for social media—to balance individual rights. Obviously, that is not a frivolous position.
However, you need to look at the practicalities of the issue. As I say in my paper, as a matter of law, all organizations, including search engines, have an obligation to develop a process to ensure that the substantive rights are respected, namely to the accuracy of information. I think that's a legal obligation they have under the current law. Does it make it proper for them to balance individual rights? Certainly, that's something to consider because it's not frequent.
As a practical matter, in Europe, we have seen hundreds of thousands of these requests made since the Google Spain decision of 2014. Should a tribunal be created? Normally, a tribunal of some sort would be created to adjudicate these requests. Should we create a tribunal that would look at hundreds of thousands of these requests every year? That would be more in line with the nature of the balancing that is at play, but I don't think it's very practical.
Although that may not be where people would go intuitively, to ask companies to develop processes, as they are bound to do under the law, to have a first decision about these applications—of course, subject to the rights of individuals who are not happy to make a complaint to our office, independent tribunal, and ultimately, the courts—is a workable system, I think. It's not a perfect system, but it's a workable system.
I just want to say that I'm very supportive of order-making powers, so that we have a regime that can do the work that it's intended to do.
On the issue of online reputation, I have a number of concerns. I was someone who thought the idea of “right to be forgotten” was a really great idea, because there are so many horror stories of digital worlds gone wrong. I also see that it can flip and be used by people who want to be forgotten for reasons that maybe they shouldn't be forgotten for. I think that you exist in the digital world. Disappearing to me is a questionable factor, for example, if it's an issue of your being accused of sexual misconduct—nothing was proven, but you can have that record erased, so that you're not tracked.
Is this something that we should be pursuing, given people's ability to misuse it?
On the question of who will use this right, and what the European experience is—and I'll get to the question about whether it's appropriate to make people disappear, which I think is a bit of an exaggeration of the right—in the European experience, there is this perception that it will be used by people with a doubtful past who want to erase that doubtful past, whatever that past is.
From the European experience, the figures would show that criminality, or factors such as that, has represented approximately 5% of the requests made. Most requests are made by people for other reasons. The record also shows that search engines grant these requests at the rate of roughly 40%. If these are being granted 40% of the time, there must be some merit to them. They're seen as meritorious.
The figures that we have also show that in France—we are going to look at other countries—70% of the decisions made by the search engines that lead to complaints to my equivalent in France are upheld. I take that to mean that the search engines are doing an okay job.
On the question of whether people should be able to erase their past—particularly sexual misconduct that may or may not have led to a finding by a court—that's obviously a very relevant and timely consideration. It will not be a foregone conclusion what the outcome will be. In many cases I think, properly applied, the request should be denied. Let me explain briefly why. If an alleged aggressor were to make a request, of course the reputation of that person would be a factor to be determined, but there is a question of accuracy then. The person would have to demonstrate that the facts alleged are untrue, and if the evidence was not there, the information would stay.
However, more important is the public interest. What we advocate in the paper is that accuracy needs to be looked at in the context of the public interest. Some of the potential requesters of the right may be public figures. In that case, I think it's pretty clear that the request should be denied, because the public interest would be such that it be denied. Moreover, even for a person who is not a public figure, there is an important public and societal debate in Canada and other countries currently that makes this a question of public interest, and that public interest would have to be weighed against the reputation of the individual.
I'm not saying that this leads to easy solutions, but I think, properly applied, all of these considerations would be borne in mind, and in many cases the request would be denied.
Okay, I guess it's how this is going to be dealt with. Certainly, there are legal tools, and maybe legal tools are not strong enough. In cases of revenge porn, sexual harassment, anything to do with minors, law enforcement needs the ability to deal with those immediately, so we need to know that those tools can be put in place for that kind of online bullying—there's a clear risk, and it's an obvious risk.
In the case where, if I make a tweet about my dear friend, Mr. Erskine-Smith, if I make some kind of outrageous comment, and he says, “That's not true”, he could threaten me with legal action for my tweet, and then I would have to decide whether to continue or to pull it down. So we have legal tools there.
I am concerned about issues of accuracy and being out of date, because the Internet is not a book; it's not an article. It is an ongoing, messy expression of discussion and debate. People write all kinds of crazy stuff about me online that's out of date and incorrect. Maybe they just don't like me.
But I'm worried about those tools being applied. I'm also worried about whether or not corporate reputation could be used, because we see SLAPP suits used against organizations all the time. To say, “This has hurt our online reputation, our corporate reputation, and we want this thing shut down”, to me, it's a very powerful tool to take something down off the Internet.
Is it your office that would adjudicate these various scenarios?
Good morning, Mr. Therrien. It's always a pleasure to have you here.
II have just some old business and some new business, so let's start with the old business first. In the past when we had you here in front of the committee, you were in favour, at that time, of maintaining your ombudsman model. Then you published a report in 2016-17 in which you called for, and I quote from the news release, “amendments to the federal private sector privacy law to provide for order-making powers and the ability to impose administrative monetary penalties.”
You've also stated that if the Information Commissioner got order-making powers, it would significantly disrupt the balance between your two offices. I know we've alluded to it, so I'd just like some clarity on the issue, just so we can have on the record that you believe that the powers given to the Information Commissioner should be balanced with your powers so there's no disruption. You would also have the ability to dismiss vexatious and frivolous requests.
There are certain cases I don't like to talk about, but this week an important case was drawn to my attention. It is also really complicated because it involves access to private information and the right to access information.
In some circumstances, Canadians sign contracts with governments. They must then provide information on their private life by filling out forms. They become consultants or self-employed workers because they have a certain specialty that allows them to obtain special contracts. If such Canadians are harmed because they are refused access to the information contained in their file, or because they are given redacted documents for reasons of national security or because this is privileged information, they find themselves in a bind and have no way to defend themselves.
Would you advise that those Canadians turn to you to defend their right to access information on their private life and to have access to certain documents that might enable them to solve their problem?
I would like to ask about the education component you were talking about, particularly for young people. During the committee on the status of women's study on violence against young women and girls, we heard there is a lot of misinformation, particularly amongst boys, about what is appropriate, or even legal, to post.
One study said that boys thought that posting something, especially if it's an intimate image of a girl, was not okay, but forwarding it was perfectly fine if somebody sent it to you. The fact is that many young people are uncertain about what is legal or what is right.
I'm very interested in the concept about this rights-based privacy education program. I'm wondering who would be doing that program. Would it be your office? I know that the YWCA, MediaSmarts, and a number of other groups are doing this kind of education.
One of the things we studied on the Status on Women committee was the Australian model. I don't know if you're aware that Australia in 2015 put together their Office of the eSafety Commissioner. It reports to the Australian Communications and Media Authority, which is their CRTC, and among the mandates of that commissioner is to do public education for young people on eSafety and to receive complaints.
This is one of the areas that's very difficult, because young people often don't know where to go to complain. They don't know whether or not it would be your office, but that would be on the privacy side of things. If it's a legal issue, it would be the RCMP or other legal authorities.
Would there be some merit in having a single eSafety commissioner who would oversee, particularly for children, the complaints process? It would be a single point of contact, and it could also do some of the education.
I'd certainly hate to recommend—after my colleagues here have done such incredible work—that if we're going to be talking about issues of takedown, online reputation, and order-making powers, specifically on that, I think we're going to need to discuss this more.
I'm not all that comfortable with looking at what Europe has done. It's helpful, but I think that if we look at Canada's role in dealing with copyright legislation over the last 15 years and the issue of takedown, we can see that Canada carved out a unique position, as opposed to the Europeans with their electronic commerce directive and to the U.S. with the DMCA. We have a notice and notice regime because there were serious concerns that the power of the rights-holder could infringe on development of the Internet and on rights.
We established a notice and notice regime. That has put Canada in I think a very interesting place, so if we're going to be looking at protection of online rights and reputation and also making sure that we are somehow balancing the right to publish and to make commentary and to challenge, it's going to take I think a really fulsome and public discussion, because this is not just about changing regs. This is about how people interact.
We've certainly looked at the place of freedom of expression in Europe, Canada, and the U.S. It's different in the three jurisdictions.
At the end of the day, I think it's important that I act based on the current law to protect the reputation of people, but at the same time, there are, as I say in the paper, extremely legitimate questions about the balance with freedom of expression. An important reason why I think it would be worthwhile for you as elected officials to look at this is exactly the reason you suggest: that there is a Canadian way of balancing these important interests.
I cannot invent this. I have to apply the law as it is, but you may hear experts, stakeholders, and citizens on these very important questions—the fabric of the country—and make proposals and legislate.
My question has been half or mostly dealt with. However, I just want to further understand it. I'll use Facebook as an example. If I publish something on Facebook, I am the publisher of that. You would agree that I have the full right to remove that. I have the full right of takedown.
Mr. Daniel Therrien: Yes.
Mr. Frank Baylis: If I publish something, or put it up there, and someone then takes a portion of it, or let's say all of it, and shares or puts it on their Facebook page, I come along and say, I want my page taken down. Then comes in the question of de-indexing or the rights I have over that other person's Facebook page who has used my information when I had put it up there with the right to be used. Let's say I did the same thing with a book I published. That gets into copyright as well. Once I put something out there, I have the right to take that information down myself.
How do you see my right to impose a de-indexing or takedown of someone else's Facebook page for argument's sake?
My question is in the same vein as the one put by Mr. Baylis.
In the House, we can debate a given topic for 10 or 15 minutes, but certain media can quote only the beginning of a sentence, the middle, or the end of another sentence that we may have said on another occasion. They put all of these bits together and create a whole new sentence. That sentence was never spoken in that way, but all of the words are there. Then it gets published on Facebook and reported on television or radio.
As members, do we have any recourse against that? Everything is recorded by the parliamentary network but the sentence in question was never spoken verbatim; it was edited.