Teresa Scassa - Blog

Friday, 09 July 2021 14:00

A First Step Along the Path to a Right to Be Forgotten in Canada?

Written by  Teresa Scassa
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The Federal Court has issued its decision in a reference case brought by the Privacy Commissioner of Canada regarding the interpretation of his jurisdiction under the Personal Information Protection and Electronic Documents Act (PIPEDA). The reference relates to a complaint against Google about its search engine, and implicating the so-called ‘right to be forgotten’. Essentially, the complainant in that case seeks an order requiring Google to de-index certain web pages that show up in searches for his name and that contain outdated and inaccurate sensitive information. Google’s response to the complaint was to challenge the jurisdiction of the Commissioner to investigate. It argued that its search engine functions were not a ‘commercial activity’ within the meaning of PIPEDA and that PIPEDA therefore did not apply. It also argued that its search engine was a journalistic or literary function which is excluded from the application of PIPEDA under s. 4(2)(c). The Canadian Broadcasting Corporation (CBC) and the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) both intervened.

Associate Chief Justice Gagné ruled that the Commissioner has jurisdiction to deal with the complaint. In this sense, this ruling simply enables the Commissioner to continue with his investigation of the complaint and to issue his Report of Findings – something that could no doubt generate fresh fodder for the courts, since a finding that Google should de-index certain search results would raise interesting freedom of expression issues. Justice Gagné’s decision, however, focuses on whether the Commissioner has jurisdiction to proceed. Her ruling addresses 1) the commercial character of Google’s search engine activity; 2) whether Google’s activities are journalistic in nature; and 3) the relevance of the quasi-constitutional status of PIPEDA. I will consider each of these in turn.

1) The Commercial Character of Google’s Search Engine

Largely for division of powers reasons, PIPEDA applies only to the collection, use or disclosure of personal information in the course of “commercial activity”. Thus, if an organization can demonstrate that it was not engaged in commercial activity, they can escape the application of the law.

Justice Gagné found that Google collected, used and disclosed information in offering its search engine functions. The issue, therefore, was whether it engaged in these practices “in the course of commercial activity”. Justice Gagné noted that Google is one of the most profitable companies in existence, and that most of its profits came from advertising revenues. Although Google receives revenues when a user clicks on an ad that appears in search results, Google argued that not all search results generate ads – this depends on whether other companies have paid to have the particular search terms trigger their ads. In the case of a search for an ordinary user’s name, it is highly unlikely that the search will trigger ads in the results. However, Justice Gagné noted that advertisers can also target ads to individual users of Google’s search engine based on data that Google has collected about that individual from their online activities. According to Justice Gagné, “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.” (at para 57) She found that search engine users trade their personal data in exchange for the search results that are displayed when they conduct a search. Their data is, in turn, used in Google’s profit-generating activities. She refused to ‘dissect’ Google’s activities into those that are free to users and those that are commercial, stating that the “activities are intertwined, they depend on one another, and they are all necessary components of that business model.” (at para 59) She also noted that “unless it is forced to do so, Google has no commercial interest in de-indexing or de-listing information from its search engine.” (at para 59)

2) Is Google’s Search Engine Function Journalistic in Nature

PIPEDA does not apply to activities that are exclusively for journalistic purposes. This is no doubt to ensure that PIPEDA does not unduly interfere with the freedom of the press. Google argued that its search engine allowed users to find relevant information, and that in providing these services it was engaged in journalistic purposes.

Justice Gagné observed that depending upon the person, a search by name can reveal a broad range of information from multiple and diverse sources. In this way, Google facilitates access to information, but, in her view, it does not perform a journalistic function. She noted: “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.” (at para 82) She adopted the test set out in an earlier decision in A.T. v. Globe24hr.com, whereby an activity qualifies as journalism if “its purpose is to (1) inform the community on issues the community values, (2) it involves an element of original production, and (3) it involves a ‘self-conscious discipline calculated to provide an accurate and fair description of facts, opinion and debate at play within a situation.” (at para 83) Applying the test to Google’s activities, she noted that Google did more than just inform a community about matters of interest, and that it did not create or produce content. She observed as well that “there is no effort on the part of Google to determine the fairness or the accuracy of the search results.” (at para 85). She concluded that the search engine functions were not journalistic activity – or that if they were they were not exclusively so. As a result, the journalistic purposes did not exempt Google from the application of PIPEDA.

3) The Relevance of the Quasi-Constitutional Status of PIPEDA

The Supreme Court of Canada has ruled that both public and private sector data protection laws in Canada have quasi-constitutional status. What this means in practical terms is less clear. Certainly it means that they are recognized as laws that protect rights and/or values that are of fundamental importance to a society. For example, in Lavigne, the Supreme Court of Canada stated that the federal Privacy Act served as “a reminder of the extent to which the protection of privacy is necessary to the preservation of a free and democratic society” (at para 25). In United Food and Commercial Workers, the Supreme Court of Canada found that Alberta’s private sector data protection law also had quasi-constitutional status and stated: “The ability of individuals to control their personal information is intimately connected to their individual autonomy, dignity and privacy. These are fundamental values that lie at the heart of a democracy.” (at para 19)

What this means in practical terms is increasingly important as questions are raised about the approach to take to private sector data protection laws in their upcoming reforms. For example, the Privacy Commissioner of Canada has criticized Bill C-11 (a bill to reform PIPEDA) for not adopting a human rights-based approach to privacy – one that is explicitly grounded in human rights values. By contrast, Ontario in its White Paper proposing a possible private sector data protection law for Ontario, indicates that it will adopt a human rights-based approach. One issue at the federal level might be the extent to which the quasi-constitutional nature of a federal data protection law does the work of a human rights-based approach when it comes to shaping interpretation of the statute. The decision in this reference case suggests that the answer is ‘no’. In fact, the Attorney-General of Canada specifically intervened on this point, argue that “[t]he quasi-constitutional nature of PIPEDA does not transform or alter the proper approach to statutory interpretation”. (at para 30). Justice Gagné agreed. The proper approach is set out in this quote from Driedger in Lavigne (at para 25): “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”

In this case, the relevant words of the Act – “commercial activity” and “journalistic purposes” were interpreted by the Court in accordance with ordinary interpretive principles. I do not suggest that these interpretations are wrong or problematic. I do find it interesting, though, that this decision makes it clear that an implicit human rights-based approach is far inferior to making such an approach explicit through actual wording in the legislation. This is a point that may be relevant as we move forward with the PIPEDA reform process.

Next Steps

Google may, of course, appeal this decision to the Federal Court of Appeal. If it does not, the next step will be for the Commissioner to investigate the complaint and to issue its Report of Findings. The Commissioner has no order-making powers under PIPEDA. If an order is required to compel Google to de-index any sites, this will proceed via a hearing de novo in Federal Court. We are still, therefore, a long way from a right to be forgotten in Canada.

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