Last course, we touched on what should be the role of search engines (private entities) in showing links on the results pages. Not only the search engines designed algorithms to provide the more relevant information based on their own “editing choice”, but they tend to personalize the results based on the user’s profile. I wonder how a democratic discourse could be guaranteed on the Internet. I have only done preliminary researches and my thoughts about it are not clearly structured. However, I decided to share it with you; and you might want to contribute.

The United States has given the protection of freedom of expression to results pages. For what I understand, the American courts considered that private entities express their opinions through the search engines. The search results are opinions. Those opinions are protected speech under the First Amendment – freedom of expression rights. E.g.: Search King Inc. v. Google Technology, Kinderstart.com LLC et al. v. Google Inc., Jian Zhang et al. v. Baidu.com Inc.

One of my concerns is that the listener/reader right are not considered.

The Canadian freedom of expression right, pursuant, Edmonton Journal v. Alberta (Attorney General), [1989] and R. v. National Post, [2010], seems to include the right to receive and access information if it is justified by the public interest.

In January 2016, the Office of the Privacy Commissioner (OPC) of Canada launched a public consultation on the online reputation. OPC received 28 written propositions. Two years later, January 26, 2018, OPC released it draft “Position Paper on Online Reputation” (the “Proposition”) (https://www.priv.gc.ca/en/about-the-opc/what-we-do/consultations/consultation-on-online-reputation/pos_or_201801/#fn15-rf). The Proposition relies on the opinion that search engines are subjected to PIPEDA and that PIPEDA provides a “de-indexing right”.  The search engines would have to evaluate the merits of a Canadian request to de-index a result on: a case-by-case basis, the materiality impact on the individual’s interests, and balance the public interest in the information. And then, if concluded in favour of de-indexation, remove the link (not the content) to a search result when a name is searched from Canada by using geo-identifying technologies. It is an important power that is given to private entities; which is determining public interest and balancing fundamental rights for Canadian without or little government oversight. (A recurrent theme in our course’s discussions: powers given to private entities vs our government).

The following avenues of reflection, in my view, would merit further examination:

• Search engines have its own opinion protected by the right of freedom of expression: The Proposition does not seem to consider the inherent protection of freedom of expression in the liberal “editing choice” of the search engines. Maybe it is part of the balance evaluation; or maybe it does not exist in the Canadian legal landscape. I don’t know if there are any Canadian cases on that subject.
• Territoriality difficulties: After the Canadian order to de-index a website on a global basis in Google Inc. v. Equustek Solutions Inc., Google sought a declaratory injunction to make unenforceable the Canadian order. Google succeeded based on the immunity for interactive service providers given under the United States Communications Decency Act (Section 230 of the Communications Decency Act “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”) (https://www.lexology.com/library/detail.aspx?g=11d2eb07-98c1-4dad-bdc5-a003e5fb58f0). How could we assure Canadian orientation on online liability of search engines to be enforceable?
• Where do we find a ground to protect online democratic discourse which could be inhibited or promoted by search engine opinion?

Note about the Proposition: The Proposition relies on the opinion that search engines are subjected to PIPEDA because the search engines “collects, uses or discloses [personal information] in the course of commercial activities” (paragraph 4(1)(a)). The “commercial activities”, in the OPC opinion, in those circumstances are rooted in their ability to sell advertising space; and the use takes the form of putting personal information when a search request is made under an individual’s name – creating a “profile of the most relevant information”. In the OPC’s opinion, PIPEDA provides a “de-indexing right”:

• Principles 4.6, 4.9 of Schedule 1: Accuracy, completeness and currency of the personal information for the purposes for which it is to be used can be challenged. Therefore, the results must be amended if the results are not accurate, complete or up-to-date.
• Subsection 5(3) of PIPEDA: Appropriate purposes of the personal information collect, use or disclose. The “appropriate” purpose is evaluated under the criterion of a reasonable person under the circumstances. Therefore, in the OPC opinion, a reasonable person will not find appropriate the use of personal information if the content is unlawful or unlawfully published or the accessibility of the information causes harm that is not outweighed by public interest.

Note: On June 2017,  the Europeen “Commission fines Google 2.42 billion euro for abusing dominance as search engine by gibing illegal advantage to own comparison shopping service” http://europa.eu/rapid/press-release_IP-17-1784_en.htm