Canadian media organizations grapple with requests to 'unpublish' articles

TORONTO -- The relief Martin Streete felt the day he walked out of court a free man erodes with every click of Google's search button.

Every time he researches his name, he's confronted with a 2011 headline announcing criminal charges he never had to face in court.

Streete said he was arrested in 2011 after an alleged sexual assault in Regina, because he matched the description provided by the complainant. Less than a year later, the charges against him were stayed and the matter was dropped.

But local newspaper reports of the initial arrest cost Streete his job and, he said, continue to limit his employment prospects years later.

"These articles, they're damaging," he said in a telephone interview from his home in Regina. "I think that's the main reason I couldn't get back to work right away because employers, before they even interview, they do searches."

It's an issue that Canada's most prominent media ethics body is looking into. The National NewsMedia Council, a self-regulatory body for English-language news outlets in all provinces except Quebec and Alberta, recently began surveying its more than 500 members on how to field cases like Streete's.

Council President John Fraser said media outlets are increasingly grappling with requests from individuals calling for their names to be scrubbed from previously published articles. Unlike some jurisdictions, Canada has no formal guidelines in place to address such situations.

In Europe, for instance, a 2014 ruling from the top court of the European Union allows citizens to ask for the removal of personal data that "appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purpose for which they were processed and in the light of the time that has elapsed." The content would remain online, but Google would make it difficult for the material to be found through its search engine.

Three years after the ruling -- known as "Right to be Forgotten" -- Google said it had processed 1.5 million requests to delist a URL, a third of which it had granted.

The federal Office of the Privacy Commissioner has undertaken a review to see if a similar approach should be adopted in Canada. A spokeswoman said the office invited submissions from academics, advocacy groups, IT specialists, educators and regular Canadians, and a report will be published early next year.

"We'll be using what we learn to inform public debate on online reputation, to better inform Parliament on the issues and potential solutions and also to develop our own policy position on the right to be forgotten and other forms of recourse in the Canadian context," Tobi Cohen said in an email.

Google made a submission saying some of the URLs it has processed have belonged to "reputable" news sources. The tech giant said any measures implemented in Canada need to come with transparency mechanisms, suggesting that the search engine might not be best equipped to assess the merit of a de-listing request.

"By putting the responsibility on the search engine to judge what is required to be 'forgotten' under European laws, and without affordances to share information with the publisher or indeed the public about a removal request, the public cannot analyse the full impact on the public interest of delisting a URL," Google Canada wrote in its submission.

"And the incentives for search engines under European laws are skewed towards removal. If a search engine wrongly takes down a particular page, that page falls out of its results; if it wrongly refuses to take down a page, the search engine can be subject to civil judgments or regulatory penalties."

The National NewsMedia Council joined with several other media industry groups to make a submission of their own, arguing that a "Right to be Forgotten" approach in Canada is an infringement on press freedom and the federal Charter of Rights.

Likening the approach to leaving library books on the shelf while removing listings from its card catalogue, the groups argued that neither tech companies nor governments should decide what material stays online.

"In an open society this is the prerogative of individual citizens, participating in a free marketplace of ideas, who are perfectly capable of deciding such questions for themselves," the Council's submission reads.

Still, Fraser said the industry must grapple with the issue and suggest best practices for outlets to follow. He said a prevalent school of thought dictates that changing factually accurate articles is tantamount to rewriting history, but added that the realities of the online world suggest a need to find a middle ground.

"We have to come to some kind of best practice somehow if we're going to be honourable and ethical in our business," he said.

Several Canadian newspapers currently do not "unpublish" material, but treat requests to alter or reclassify content on a case-by-case basis. The Globe and Mail's code of conduct, for instance, indicates the paper's current practice is to assess such requests by committee, with senior editors and lawyers evaluating the individual situation. The paper said it "generally does not unpublish content or remove details such as names from our websites and archives other than for legal reasons, but it does correct and update articles as necessary if there is a significant factual error."

The approach is similar at the Toronto Star, according to Public Editor Kathy English. In instances where charges have been withdrawn, English said the paper will prominently append an update to the top of the original article. The same practice is currently in place at the National Post, according to Gerry Nott, senior vice-president of content.

"We're not in the unpublishing business, but we are in the fairness business," Nott said in a statement.

The Canadian Press also does not believe in "unpublishing" material, according to Editor-in-Chief Stephen Meurice. When the news agency becomes aware of a substantial change in a story it produced, it confirms the development before sending a publishable note to its media clients that they can append to the story. The Canadian Press does not publish material directly to the public, but only through the media outlets that subscribe to it.

English, who said she fields one or two such requests a week, acknowledged the issue is a challenging one for the industry to navigate.

"I think one of the solutions to this happens earlier on in the process when we consider what we publish," she said. "Perhaps we could be moving to a place where we don't publish things that we know we do not have resources or intention to follow through on."

English acknowledged that some news outlets have opted to omit names from stories with slim follow-up prospects. Some papers, such as weekly Metroland publications Brampton Guardian and Mississauga News, said they would consider altering existing stories to remove names of people who have criminal charges withdrawn before the matter comes to trial.

Editor-in-Chief Patricia Lonergan said such alterations are always accompanied by a prominently displayed editor's note disclosing that a name has been removed and explaining the reason why. She said her papers have established an "ethics committee" that uses internal guidelines to assess the growing number of requests to remove content.

"The underlying philosophy is that news organizations do not rewrite history or make news disappear," Lonergan said. "However, life isn't that simple."