Digital memory enables past behaviour to be remembered forever. Just ask any politician. But the strategy of “no comment” in the court of public opinion can be disastrous for trust and reputation. Silence mitigates legal risks in the courtroom, but counsel, witnesses, judges, and juries are influenced by public perception; not only must justice be done, it must be seen to be done. The permanency and accessibility of information simplifies dissemination, making crisis management essential.

In 2010, a Spanish citizen filed a complaint that outdated, irrelevant information regarding repossession of his home should be removed from a newspaper and Google’s search results as it infringed his privacy (Google Spain SL v. Agencia Espanola de Proteccion de Datos, Case C-131/12, May 13, 2014). Information about his debts had been resolved a decade earlier, but continued to appear in search results with his name. Google eventually appealed to the National High Court of Spain, which referred a series of questions to the Court of Justice of the European Union (“CJEU”), the highest court in the EU.

In 2014, the CJEU ruled that EU citizens have the right to be forgotten. It placed onerous obligations on Google to remove inaccurate, inadequate, or irrelevant data from its search results. The decision meant that data protection laws applied to search engines, even if data processing servers were located in another jurisdiction and the infringing content continued to exist. The General Data Protection Regulation, (EU) 2016/679, which came into force in 2018, enshrined the right to erasure in Article 17. On balance, EU citizens have the right to digital obscurity.

In Canada, federal and provincial privacy laws govern the collection, use, and disclosure of personal information, including the right to request certain information be removed or corrected by the original source. In addition to privacy rights, Canadians also have the right to access information and to freedom of expression. The right to be forgotten does not exist in Canada. As Google challenged in a reference case by the Office of the Privacy Commissioner of Canada to the Federal Court, the right to be forgotten might be unconstitutional (Reference re subsection 18.3(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, 2019 FC 261).

So how does this unfold in the court of public opinion? Perhaps it is an image from a social event, an outdated criminal conviction, or information in a public registry. The dissemination of potentially harmful information can give rise to crises that impact reputation, productivity, morale, and strategy. The potential harm can be swift and, in some cases, more devastating and permanent than losses in court.

Traditional “no comment, we will win in the courtroom” messaging is outdated. It relinquishes control of a narrative in a landscape filled with short attention spans and viral stories. Silence mitigates legal risks, but breeds speculation that there is something to hide. Legal advice for crisis management needs to extend beyond litigation exposure to reduce a range of risks, including the consequences of permanently available information.

Issues like record-keeping, compliance, governance, investigation, and mitigation all benefit from legal expertise. The most useful advice will include quick, simple messaging to manage a broad range of issues and still be interesting enough to persuade the public. Efficient crisis management requires caution to reduce litigation risk. More than ever, it also requires a strategy for effective communication.