Right to be Forgotten – Recent Quebec Case (C.L. v. BCF Avocats d’affaires (2016))

abstract 3d illustration of data storage room

Quebec was the first province to enact a data protection law for the private sector, an Act respecting the protection of personal information in the private sector in 1993. This law is substantially similar to the federal law PIPEDA. The Quebec Commission d’Accès à l’Information (CAI), the government body responsible for the administration and enforcement of the Quebec law, has recently (April 2016) rendered a decision that raises issues pertaining to the right to be forgotten. Under the 2014 CJEU’s landmark Google Spain case, a right to be forgotten would allow individuals to stop search engines from providing links to information about them deemed “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes of the processing at issue”. While this right would not erase per se the original source of information, it would directly seek to hide information by removing results for queries that include certain names.

In C.L. c. BCF Avocats d’affaires, 2016 QCCAI 114 (CanLII), a former employee of a law firm is requesting that the CAI orders the law firm to stop linking to her name. When she was employed, the law firm announced that she had joined the firm and her name, title, business contact information and picture were published on the law firm’s website. Now that she is no longer employed there, she is concerned that when her name is searched through Google’s search engine, search results will display information linking her name to the law firm. She had a negative experience working at the law firm, she has removed the employer from her resume and is concerned that new employers may find out that she has worked there and call for references. She no longer wants people searching her name to be able to link her to this former employer.

The law firm was able to demonstrate that the plaintiff’s personal information was no longer published on its website and that the law firm’s website was not linking to her name in any way. A technical expert explained that since she had no presence on the Internet (she was not on Facebook, nor on LinkedIn), search engines may display archived information in their search results (information available in older versions of the web, through wayback machine), although the results would not link to any content to the law firm’s website. The law firm argued that the plaintiff’s request was similar to a request seeking to destroy a newspaper’s archives in which notices of appointements have been published (par. 63). 

The CAI found that the law firm was not at fault for the search results displayed and rejected the claim. The CAI mentioned something interesting which pertains to the right to be forgotten:

[65]  The right of an individual to have inaccurate, incomplete or ambiguous information in her file rectified is not a “right to be forgotten” which aims to erase information from public spaces. Moreover, it is doubtful that this right, recognized in Europe, would find application in Quebec. (free translation)

In 2015, the Office of the Privacy Commissioner of Canada chose reputation and privacy as one of its priorities for the next five years and is currently exploring if a right to be forgotten can find application in Canada. I submitted a position paper in April 2016 (co-authored with Jules Polonetsky). This recent decision from the CAI may, to some extent, provide some insight on the position of the CAI with regards to the application of the right to be forgotten in Quebec.

This content has been updated on June 13, 2016 at 10 h 16 min.