OPC, AGC oppose Google expanding deindexing reference

The Office of the Privacy Commissioner and the Attorney General of Canada (AGC) have filed appeals challenging Alphabet Inc.’s application to expand the scope of a deindexing case to include questions about whether forcing it to scrub its search engine infringes on its free expression rights. The OPC filed the original application last year for judicial guidance on whether the country’s private sector privacy law applies to Google’s search engine. The request came after an individual, who was charged with failing to disclose HIV status to a sexual partner, asked the OPC to order Google to remove results from searches of his name, including in news articles. The original reference, primarily a jurisdictional issue, does not include constitutional questions. In a submission dated Monday, the OPC and the attorney general challenged Google’s motion, filed after a court hearing last month to determine whether media players could participate in the case. In its rebuttal to the attempted expansion of the reference question, the OPC laid out reasons why raising the constitutional questions at this point is problematic, including that it isn’t certain that the Personal Information Protection and Electronic Documents Act (PIPEDA) even applies to the deindexing issue and uncertainty surrounding the result if it did apply. Google will still have an opportunity to address the constitutional questions at a later date, the OPC added. The AGC argued in its brief appeal, which did not take a position on the facts, that Google, as a private company, cannot refer questions to the court in the context of a reference. The AGC argued that only its office or a federal board can. Before the AGC applied in December to participate in the proceedings, ISED received internal advice concluding it should get involved. “Given that the holds policy responsibility for PIPEDA and the issue raises important policy questions, ISED may wish to participate in the Court reference,” said an advice document to Innovation Minister Navdeep Bains, obtained through Access to Information. In an email to The Wire Report, ISED said, “The Government is closely following the Court proceedings. The views of the Court will inform the development of legislative reform.” The original complaint dates back to June 2017, when the individual first raised the issue of search engine results to the OPC. In November that year, the OPC raised the concern with Google and requested its response, which came in March 2018, when it said that it does not agree that its search engine service is a commercial activity under a section of PIPEDA -- but that it was exempt under the “journalistic” provisions within the act anyway. The OPC published a draft position on the issue early last year. Google said the Charter issue should be determined by the current court so as not to impose an “unnecessary delay.” If the court doesn’t grant Google’s motion, then the Charter issues won’t be determined, Google’s motion noted, leading to an “impractical and inefficient result, giving rise to piecemeal litigation.” A hearing on the matter will be held on March 21.

OPC, AGC oppose Google expanding deindexing reference

Brief | March 14, 2019

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OPC, AGC oppose Google expanding deindexing reference

Brief | March 14, 2019

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