A step towards the right to be forgotten: a developing story

While several bills contemplate the introduction of a right to de-indexation/removal into applicable privacy legislation at both the federal and provincial levels, the Federal Court, in a recent reference (2021 FC 723 – July 8, 2021) regarding the application of the Personal Information Protection and Electronic Documents Act (the “PIPEDA”), appears to be opening the door to recognizing this “right to be forgotten.”

In response to a complaint filed against Google, the Office of the Privacy Commissioner of Canada (the “OPC”) submitted the following two questions regarding the application of the PIPEDA to this search engine:

1. Does Google, in the operation of its search engine service, collect, use or disclose personal information in the course of commercial activities within the meaning of paragraph 4(1)(a) of PIPEDA when it indexes webpages and presents search results in response to searches of an individual’s name?

2. Is the operation of Google’s search engine service excluded from the application of Part 1 of PIPEDA by virtue of paragraph 4(2)(c) of PIPEDA because it involves the collection, use or disclosure of personal information for journalistic, artistic or literary purposes and for no other purpose?

After reviewing the operation of the search engine, the Federal Court addressed the questions posed. It answered the first question in the affirmative: Google is engaged in a commercial activity within the meaning of the PIPEDA. It answered the second question in the negative: the purposes for which Google handles personal information are not journalistic.

The Federal Court clarified, however, that this decision does not determine the outcome of the complaint before the OPC, nor its power to recommend de-indexation. 

It remains to be seen what action will be taken on this judgment by the OPC, which had suspended the investigation of the complaint against Google, as well as what action the search engine may wish to take.

If you have any questions on this subject, please do not hesitate to contact Cynthia Chassigneux to discuss them.

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With respect to the first question, which it answered in the affirmative, the Federal Court stated that: 

[40] The sub-questions that are relevant to this first Reference question are whether a) in the operation of Google’s search engine service, when it indexes webpages and presents search results in response to searches of an individual’s name, Google discloses, collects or uses personal information, and b) whether it does so in the course of commercial activities.[…[

[51] Google is a for-profit corporation and one of the most successful technology businesses of the modern era. […]

[52] The bulk of Google’s revenue comes from advertising […]

[53] Advertisers pay Google a fee each time a user clicks on an ad in Google search results or takes an action having seen an ad, such as downloading an app.

[54] Because Google also delivers ads on third-party websites, Google may earn revenue if a user navigates to a webpage listed in Google search results and then clicks on or views a Google-delivered ad displayed on that page.

[55] Google promotes its advertising business by highlighting the popularity of its search engine. […]

[56] This business model was foreseen when Parliament enacted PIPEDA. The Government of Canada’s consultation paper that preceded PIPEDA noted that, “[t]he challenge of the electronic age is that with each transaction we leave a data trail that can be compiled to provide a detailed record of our personal history and preferences” (Exhibit D-1 to the Ballott affidavit p 23). In this new environment, personal information itself becomes a commodity, to be mined and used for profit (Exhibit D-1 to the Ballott affidavit 23).

[57] That is to say that even if Google provides free services to the content providers and the user of the search engine, it has a flagrant commercial interest in connecting these two players. There is a real trade between Google and the users of its search engine. In exchange for the information displayed in the search results, the users provide a variety of personal information (their location, preferences, interests, consumption patterns etc.). That personal information is used for profit.

[58] And, in order to attract the users, Google needs to feed them with the most accurate and customized information they are searching for.

[59] Therefore, unless it is forced to do so, Google has no commercial interest in de-indexing or de-listing information from its search engine. 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.

With respect to the second question, which it answered in the negative, the Federal Court noted that:

[81] I agree that Google facilitates access to information, such as news media. I also agree that facilitating access to information is often associated with “publishing” said information. […]

[82] In my view, the reasons why hyperlinks are not publication for the purposes of defamation are also relevant to search results – Google has no control over the content of search results, the search results themselves express no opinion, and Google does not create the content of the search results. […]

[86] In my view, the operation of Google’s search engine, even when we only consider the search results for the Complainant’s name, does not satisfy the definition of journalism accepted by the Court in Globe24h.

[87] The final and determinative aspect of this analysis is the part of paragraph 4(2)(c) which says that it only applies to organizations that collect, use or disclose personal information for journalistic purposes, “for no other purpose”. […]

[89] It is useful to apply a similar analysis to Google. The primary purpose of Google’s search engine service is to index and present search results. This 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. Even though Google returns some journalism in its search results, its search results clearly extend beyond journalism.

[90] In sum, Google’s search engine service does not operate for a journalistic purpose at all, or at least it does not operate for an exclusively journalistic purpose. […]

[94] […] And in my view, there is no ambiguity here. First, Parliament limited PIPEDA to only protecting “journalism” and not freedom of expression broadly speaking. […] Second, Parliament limited PIPEDA to protecting the collection, disclosure and use of personal information for exclusively journalistic purposes. Third, a popular or ordinary understanding of journalism, as provided by journalists themselves, does not encompass Google’s search engine service.

[95] Therefore, I find that Google’s purposes for collecting, using and disclosing personal information for its search engine service are not journalistic, and they are certainly not exclusively so.

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