Court decides PIPEDA applies to Google search, “right to be forgotten” debate kept alive

A court decision that Canada’s federal private sector privacy legislation applies to Google’s search engine will keep the “right to be forgotten” debate alive and gives the federal Office of the Privacy Commissioner jurisdiction to hear a de-indexing complaint. Friday, the Federal Court of Canada released its decision in a reference case brought forward by the Privacy Commissioner regarding the interpretation of its jurisdiction under the Personal Information Protection and Electronic Documents Act (PIPEDA). It found that in operating its search engine, Alphabet Inc.’s Google collects, uses and discloses personal information in the course of commercial activities, largely validating arguments made by the OPC. It also found that that collection, use and disclosure was not for an exclusively journalistic purpose, rejecting arguments offered by CBC/Radio-Canada. In July 2020 the Canadian Internet Policy and Public Interest Clinic (CIPPIC) and CBC/Radio-Canada were both granted intervener status. “This decision provides important clarity regarding what constitutes 'commercial activities' under the federal law, and will help protect users’ rights to privacy in relation to other web giants as well,” Lex Gill, co-counsel for CIPPIC, with Tamir Israel, wrote in an email to the Wire Report. As a result, PIPEDA applies to Google and gives the commissioner jurisdiction to deal with privacy complaints involving the search engine. The reference case came after the commissioner launched an investigation for a complaint made in June 2017 against Google. The complainant claimed that Google contravened PIPEDA by displaying links to news articles that contained personal and sensitive information when his name is searched through the company’s search engine. “The complainant says that the fact that Google prominently links these articles to his name in search results has caused, and continues to cause him, direct harm, including physical assault, lost employment opportunities and severe social stigma,” according to the decision. Google responded to the complaint filed by the OPC in 2018, stating that PIPEDA did not apply to its search engine, “which is not a commercial activity within the meaning of paragraph 4(1)(a) of PIPEDA,” and argued that its search engine is a journalistic or literary operation, according to the decision. However, the OPC wrote in its submitted arguments in September 2020, that the sale of advertising space by Google is clearly commercial, and is not changed by the fact that not all search results contain ads. “It would be an absurd result to say that PIPEDA applies only to search results pages where an ad is displayed, but not to others. It is the activity as a whole that must be assessed,” the OPC argued at the time. Two months later, in its intervention, the CBC argued that Google search results should fall under journalistic protections, telling the court that it “can and should be seen to be engaging in a journalistic purpose when it discloses personal information that is contained in links to journalism.” In her decision, Associate Chief Justice Jocelyn Gagné, wrote that the primary purpose of Google’s search engine service is to index and present search results. This, she wrote, is “not a primarily journalistic purpose because although it may facilitate access to information, it contains no other defining feature of journalism, such as content control or content creation,” and therefore ruled that it does not serve a journalist purpose -- one of the two questions posed by the commission. Regarding whether Google, in the operation of its search engine service, collects, uses or discloses personal information in the course of commercial activities -- the other question posed by the commision -- Gagne rulé that it in fact did. “In my view every component of that business model is a commercial activity as contemplated by PIPEDA. To have a microscopic look at the free aspect (i.e. no payment in money made) of the search for the user, or to the free aspect of the 'library service' provided to news media would be, in my respectful view, a misunderstanding of Google’s business model. All these activities are intertwined, they depend on one another, and they are all necessary components of that business model,” she wrote. The complaint before the OPC raises the “right to be forgotten” issue but this case only clears the way for the commissioner to investigate the complaint. Teresa Scassa, Canada research chair in information law and policy at the University of Ottawa, said whether or not Canada will actually adopt a “right to be forgotten” remains a long road ahead. If Google opts to not appeal the court’s decision, or if the appeal is denied, the commission will then look into the complaint and issue a report with recommendations. “And that's of course, another stage of the process because those recommendations are not binding and we can accept them or ignore them,” she said in a phone interview with the Wire Report. “In order to require an order to compel Google to comply with legislation, the commissioner would have to apply to federal court and hold a hearing… We’re potentially in the long haul," she said. In the meantime, the federal government introduced Bill C-11, to reform PIPEDA, which Scassa said “changes the game a little bit” because by the time it is decided there could be new data protection laws in Canada. -- Reporting by Jenna Cocullo at jcocullo@thewirereport.ca and editing by Michael Lee-Murphy at mleemurphy@thewirereport.ca.

Court decides PIPEDA applies to Google search, “right to be forgotten” debate kept alive

News | 07/09/2021 5:39 pm EDT

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