The Federal Court Confirms Office of the Privacy Commissioner’s Findings About Globe24h
Last Monday, on January 30th, the Federal Court issued a judgment in an application against the Globe24h.com website and its owner, Mr. Sebastian Radulescu. Mr. Radulescu’s activities have been discussed over the past couple of years in mainstream media as well as here on Slaw.
In June 2015, the Office of the Privacy Commissioner issued findings (Complaints against Globe24h.com, 2015 CanLII 33260 (PCC)) which we then commented. In his reasons (A.T. v. Globe24h.com, 2017 FC 114 (CanLII)), Judge Mosley confirms, among other findings, that Mr. Radulescu’s website has no journalistic purpose:
[70] In my view, the respondent’s claimed purpose “to make law accessible for free on the Internet” on Globe24h.com cannot be considered “journalistic”. In this instance, there is no need to republish the decisions to make them accessible as they are already available on Canadian websites for free. The respondent adds no value to the publication by way of commentary, additional information or analysis. He exploits the content by demanding payment for its removal.
[71] The evidence indicates that the respondent’s primary purpose is to incentivize individuals to pay to have their personal information removed from the website. A secondary purpose, until very recently, was to generate advertising revenue by driving traffic to his website through the increased exposure of personal information in search engines. There is no evidence that the respondent’s intention is to inform the public on matters of public interest.
Source: A.T. v. Globe24h.com, 2017 FC 114 (CanLII), par. 70-71, <http://canlii.ca/t/gx6bl#par70>, retrieved on 2017-02-01.
I want to celebrate this ruling. Certainly the result as it pertains to Globe24h and any other who might operate in that model is warranted and just. But have we also witnessed a narrowing of the open court principle and Parliament’s intent concerning republication of the law in the absence of a full debate?
Much of this ruling rightly relies on the norms of Canadian online legal publishing and the CJC’s Model Policy that discourages courts and publishers from permitting online decisions to be indexed by search engines. Yet no mention of those practices or of PIPEDA are balanced against the Reproduction of Federal Law Order (SI/97-5). And the Court’s statement at paragraph 70 that “…there is no need to republish the decisions to make them accessible as they are already available on Canadian websites for free” seems to beg for a fuller discussion in light of the wording of SI/97-5, in both the preamble:
“Whereas it is of fundamental importance to a democratic society that its law be widely known and that its citizens have unimpeded access to that law;
And whereas the Government of Canada wishes to facilitate access to its law by licensing the reproduction of federal law without charge or permission;”
And in the Order itself:
“Anyone may, without charge or request for permission, reproduce enactments and consolidations of enactments of the Government of Canada, and decisions and reasons for decisions of federally-constituted courts and administrative tribunals, provided due diligence is exercised in ensuring the accuracy of the materials reproduced and the reproduction is not represented as an official version.”
I’m glad for this decision. I’m all for cases being available to help others in there situation, but not like this. Employers do searches on employees and potential employees; thus this website, which does exploit people’s personal situation, is unnecessary and puts others in vulnerable cases, such as impeding one’s ability to secure reasonable employment and to keep keep that employment.
This is most definitely a case of “bad facts make bad law.” Globe24h was a poorly designed and programmed website that added no value to the decisions it republished. Yet there’s good examples where people have republished Canadian judicial and tribunal decisions in some innovative or useful way. CanLII is one of those. Knomos is another that comes to mind.
There’s a reason search has transformed the web. Case law should be accessible and available to the public through search, like the rest of the web. That will never be possible if it can’t be indexed by search engines. What the court has effectively decided is we will make case law kind of-sort of available to the public, consistent with our long standing principles of open courts, but only if you want to make use of last century’s inefficient and outdated search methods. It doesn’t make much sense.
In so far as privacy rights are implicated, I would say if you don’t want your legal disputes out there for the world to read about, don’t sue people, or sue people and make sure you settle it before it goes to trial. Everyone knows legal decisions are published. I don’t doubt there’s a real opportunity to apply the concept of “implied consent” in this case as it was set out by the SCC in the recent Trang decision.