March 8, 2018

The Right to Not Be Remembered, False News and the Impact on Immigrants

Posted by Mario Bellissimo - Bellissimo Law Group PC

The “Right Not to be Remembered” privacy, and fake news are global issues that many countries, agencies and search engine providers are grappling with including our own Canadian Privacy Commission.  The rise and prevalence of fake news on the World Wide Web needs little by way of explanation. But what about the “Right to Not Be Remembered,” what does that mean and how does the concept involve the world of Canadian immigration law?

As Irina Raicu, the Director of the Internet Ethics program at the Markkula Center for Applied Ethics, Santa Clara University explained a few years ago:[1]

The Court of Justice of the European Union issued a decision that has been broadly mischaracterized as establishing, in Europe, a “right to be forgotten.” The ruling mandated that search engines delist certain results from certain searches at certain people’s request.

Following that, Google appointed an advisory council (buttressed by input from public meetings held in several European capitals) to advise the company in regard to its implementation of the decision.

The council released its report earlier this month [in 2015]. One of the first things that it notes is that the ruling “does not establish a general Right to be Forgotten. Implementation of the ruling does not have the effect of ‘forgetting’ information about a data subject.”

She went on to explain that “delisting” . . . “. . . requires Google to remove links returned in search results based on an individual’s name when those results are ‘inadequate, irrelevant or no longer relevant, or excessive.”[2]  The reality however is how can even Google with trillions of pages of information souse out inadequate information especially given the prevalence of fake news.  More difficult still, make the call regarding what may be irrelevant or excessive.

Ms. Raicu noted that “[o]ther critics of the ruling have expressed particular concern over the impact it might have on the preservation and dissemination of information about crimes against humanity”.[3] And so this in part is the link to the world of immigration law and policy.  In the immigration context reliable information is critical to making accurate determinations about certain foreign nationals, refugee claimants, permanent residents and even citizens admissibility to Canada (criminality, security, organized crime and other areas of inadmissibility). Fake news, delisting and categorizing (of information) are all thrown into the pot of this complex exercise of determining admissibility.

Visa officers continue to make serious admissibility findings regarding security, espionage, and crimes against humanity amongst others, based in part, on open source information.  This is not without peril.  With respect to using blogs as sources of information, the Honourable Mr. Justice Barnes of the Federal Court of Canada in Afanasyev [4]: held “I accept the point that open-source or wiki-type websites are, like blogs, notoriously unreliable and should rarely, if ever, be used as evidentiary sources.” It follows then that admissibility reports which are based on social media and blogs are equally unreliable.  But officers are still making assessments at times on unreliable open source information resulting in serious implications on would be immigrants and their families’ lives.

The legal test for information to be relied upon is “an objective basis for the belief which is based on compelling and credible information.”  No doubt, this is a fascinating and still, a relatively new world.  So much has to be researched, considered and debated as to how societies will manage unprecedented volumes of information and yet preserve some modicum of privacy.  Given the enormity and power of the World Wide Web, this may be one of the greatest global challenges we have ever faced.