This blog post was written by Anna Hulchanski, our 2021 Ottawa summer student, with the assistance of Natai Shelsen.
Have you ever googled yourself? (Of course you have!) But have you ever been disturbed by what you saw? And have you ever wondered if there’s anything that you can do about it? It looks like the Privacy Commissioner of Canada is wondering the same thing.
In Reference re Subsection 18.3(1) of the Federal Courts Act, the Commissioner sought the Federal Court’s opinion on whether the Personal Information Protection and Electronic Documents Act (PIPEDA) applies to Google’s search engine. PIPEDA applies to private-sector organizations across Canada and generally requires that they obtain an individual’s consent in order to use, collect or disclose personal information in the course of a commercial activity.
The Privacy Commissioner had received a complaint against Google. The complaint alleged that Google’s search engine contravened PIPEDA because a search for the complainant’s name would display links to news articles that contained personal health information. Google took the position that PIPEDA did not apply to its search engine and therefore the Privacy Commissioner had no jurisdiction over the complaint.
The Commissioner asked the Federal Court for its opinion on two questions relating to the application of PIPEDA.
First, the Commissioner asked the Court whether Google, in the operation of its search engine service, collects, uses or discloses 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.
The Court found that Google’s search engine does collect, use or disclose personal information in the course of commercial activities within the meaning of paragraph 4(1)(a). Google’s collection activity includes the use of “crawlers” that copy and index content found on publicly accessible pages. This information is necessary for Google’s services to be valuable, both to users and to advertisers.
The Court also held that, even though Google’s search engine is free to use, it is a commercial activity. Under PIPEDA, a commercial activity is defined broadly and includes “any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, including the selling, bartering or leasing of donor, membership or other fundraising lists.” In Google’s case, the bulk of its revenue comes from advertising and is connected to searches. As the Court explained:
[Google] has a flagrant commercial interest in connecting these two players [content providers and users]. 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.
Second, the Commissioner asked the Court whether Google’s search engine service was excluded from the application of the legislation by virtue of the journalistic exemption in paragraph 4(2)(c) of PIPEDA. Paragraph 4(2)(c) provides an exemption where the collection, use or disclosure of personal information is for journalistic, artistic or literary purposes and for no other purpose.
The Court held that Google is not protected by the exemption for journalistic activity. Google’s argument focused narrowly on the news articles that were at issue in the original complaint, but the Court found that the Commissioner’s question was actually broader and referred generally to the operation of Google’s search engine. To consider only the news articles would ignore other content that may appear when a search is conducted.
The Court also considered the three-step test from its previous decision in Globe 24h and determined that Google’s activities do not qualify as “journalism”. It held that, although Google makes information accessible, it does so universally and not to provide information to a particular community. Google does not create or express anything, and it makes no effort to determine if the search results are fair or accurate. As a result, the Court concluded, search engine results cannot be considered journalism.
The Federal Court therefore determined that PIPEDA applies to Google’s search engine. This means that the Commissioner has the power to investigate complaints regarding the search results generated by the operation of Google’s search engine services and could potentially order Google to remove links to content containing personal information.
Google has appealed the Federal Court’s decision. Among other grounds, Google is arguing that the Court erred in finding that the exemption for journalistic activity does not apply to its search engine. We’ll have to wait and see whether the Federal Court of Appeal agrees.
GP’s Peter Engelmann and Colleen Bauman represented the Privacy Commissioner in the Federal Court reference.