Best We Forget: Expressive Freedom and the Right to be Forgotten

The right to be forgotten is often framed as being at odds with the freedom of expression. This paper aims to challenge that position. First, I briefly summarize Google Spain as an introduction to the right to be forgotten. Next, I review recent cases in the Canadian jurisprudence and argue that they potentially set the stage for a Canadian right to be forgotten. I then turn to an analysis of how the right to be forgotten is consonant with the three core purposes of the freedom of expression: democracy and self-government, the search for the truth and the marketplace of ideas, and individual autonomy and self-actualization. Given the Canadian Supreme Court’s acceptance of the core justifications of expressive rights in the Charter jurisprudence, I suggest that constitutional considerations of the right to be forgotten be enriched by an understanding of how forgetting bolsters expressive freedom in the digital age.