July 17, 2018

In my practice, I’ve consulted with, and represented, individuals and corporations who have had inaccurate and, sometimes, hateful statements written about them online.  In a recent case, those statements became the number one hit on Google when the client’s name was searched.  The Office of the Privacy Commissioner of Canada (“OPC”) in a January 2018 position paper entitled, Draft OPC Position on Online Reputation illuminated the issue of the responsibility of search engines for an individual’s reputation.

Specifically, the OPC stated that it “is of the view that the Personal Information and Electronic Documents Act S.C. 2000, c. 5 (“PIPEDA”) applies to a search engine’s indexing of online content and display of search results.  As such search engines must meet their obligations under the Act.”

The OPC went on to state that certain content containing personal information identified by a search engine as ‘relevant’ in relation to a search of an individual’s name and given prominent placement in search results offends PIPEDA if the content is:

  1. defamatory; or
  2. where the accessibility of the information may cause significant harm to the individual, and there is either no public interest associated with the display of the search result, or the harm, considering its magnitude and likelihood of occurrence, outweighs any public interest.

In its introduction to the paper, the OPC set out its goal to help create an environment where individuals may use the Internet to explore their interests and develop as people without fear that their digital trace will lead to unfair treatment.  In preparation for the paper, the OPC undertook a consultation and call for essays on issues of defamation and online reputation.  Dozens of submissions were given on the issue and on the delicate balancing of freedom of expression with the privacy and reputational well-being of individual Canadians.

The OPC paper acknowledged the harm to private individuals occasioned by search engines displaying inaccurate information about them when their name is searched.  The OPC concluded, rightly, that individuals should be provided a mechanism by which they can challenge the accuracy of the information and, where such a challenge is successful, to have the information corrected, deleted or augmented, as appropriate.

The OPC’s paper is a forward step toward regulating in the area of online reputation and holding search engines accountable for the search results they display (and often monetize – but that discussion is for another day).

It is hardly debatable that search engines are often responsible for the make or break of an individual’s or corporation’s reputation.

Next month (August 2018), I will provide my case commentary on the Supreme Court of Canada’s 2017 decision in Google Inc. v. Equustek Solutions Inc. wherein the SCC ordered Google to remove search results globally in order to prevent irreparable harm to a third party.  Equustek is part of a growing legal climate that recognizes that internet platforms and social media are rendering face-to-face interactions irrelevant and one’s online presence is critical to one’s livelihood.  Now is perhaps the most important time in Canadian history for search engines, domain name registrars, Internet Service Providers (ISPs) and the like to take proactive measures to get ahead of where the law is headed in this area.  For example, it is important for these players to have a process by which individuals can submit a complaint and defamatory content can be considered by them and voluntarily removed before too much harm is done to an individual or their business. A legally up-to-date and robust terms of use policy assists in this regard.

I am pleased to serve our clients in the area of search engine accountability for individuals and corporations seeking to preserve the reputation they have worked so hard to build.