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The ‘right to be forgotten’ on Google – Can it happen in Canada?

If a tree falls in the forest and no one is around to hear it, does it make a sound? Similarly, if damaging information is posted on the internet and is not picked up by Google, does it cause harm?”

In the era of social media marketing, a business’ search engine results can contribute to its success or failure. Indeed, many businesses spend significant marketing resources on Search Engine Optimization or SEO (the process of affecting the visibility of a website or a web page in search results). But what if they yield search results that are harmful to the business? For example, suppose there is a defamatory review on a webpage and that defamatory review appears in the top ten search results on Google. Can Google be legally forced to remove the webpage from its search results?

In Europe that may be the possible. In a much publicized decision in the spring of 2014, a judge of the European Union court ordered Google to remove search results that contain information about a person that may be “inaccurate, inadequate, irrelevant or excessive”. Consequently, Google and other search engines have been receiving numerous requests for removals of search results from European residents. That decision, however, does not apply to Canadian residents. In Canada, there is no law that requires Google to remove search engine results containing personal or defamatory information. The only legal solution available to such individuals or businesses is to remove the information directly from the website in which it is posted.

It is nonetheless conceivable that a Canadian court may find Google liable for defamation in the example I gave above. Canadian defamation law provides that anyone in the chain of publication of a defamatory statement may be liable for that defamation. It is arguable that Google is an active publisher of the defamatory content. Indeed, if not for Google’s search results, a defamatory statement on an obscure website may never have been read by anyone, because no one would have known about its existence otherwise (i.e., the “tree falling in the forest” analogy). Indeed, such reasoning has been accepted by Australian and New Zealand courts, where the law of defamation is similar to Canadian law.

Significantly, in the recent decision of Equustek Solutions Inc. v Google , the British Columbia Superior Court issued an injunction against Google ordering it to remove search results. That case involves protected litigation between the plaintiff and certain defendants (not-Google) over intellectual property rights. As part of that litigation, the BC court issued orders against some of the defendants (not-Google) prohibiting them from selling certain products on their websites, however, the defendants ignored the orders and continued to offer the products for sale on their websites. Equustek then successfully brought the application against Google for an order removing the defendants’ websites from its search results.

Google has appealed the order and the appeal is pending. Whatever the BC Court of Appeal decides in the Equustek case, it will be the first time a Canadian high court will consider the “right to be forgotten” on Google.

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Maanit Zemel

Internet and Social Media lawyer, commercial litigator at MTZ Law
Maanit Zemel is a commercial litigator admitted to practice in Ontario and New York, with substantial experience and expertise in Internet and social media law, including Canada’s Anti-Spam Legislation (CASL), privacy, online defamation, cyberbullying and cyber-security. Read more.
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