Last June 5th, the Office of the Privacy Commissioner of Canada (OPC) issued its findings (Complaints against Globe24h.com, 2015 CanLII 33260 (PCC), the “Findings”) in relation with the activities of a Romanian entrepreneur who illegally downloaded a large number of Canadian decisions in order to commercially exploit the desire of the individuals named in these decisions to maintain some degree of privacy. The story of Sebastian Radulescu, the operator of the Globe24h.com website, has been reported by news organizations such as the Financial Post, the CBC and the Globe and Mail. See our summary at the end of this post.
The OPC Findings offer a revealing description of the various schemes used by the Globe24h operator to extract money from the Canadian people named in the decisions. Essentially, those decisions were made searchable via Google, and then money was asked for (19 Euros) to have the decisions redacted. In its Findings, the OPC recommended “that Globe24h delete from its website and servers all Canadian court and tribunal decisions that it republishes which contain personal information and take the necessary steps to remove these decisions from search engine caches” (Findings, par. 95). The OPC concluded that the some 30 complaints were well-founded under PIPEDA. Furthermore, the Office stated its continuing interest in the matter and its intent to further collaborate with relevant Romanian authorities towards securing an appropriate resolution.
The OPC investigation and the resulting Findings constitute an important step towards a solution for all those who complained or even those who did not complain but discovered that court or tribunal decisions in which they were mentioned could be searched with Google and other popular search engines.
The analysis followed by the Office of the Privacy Commissioner is largely based on the “Model Policy for Access to Court Records in Canada” (the “Model Policy”) prepared by the Judges’ Technology Advisory Committee of the Canadian Judicial Council (the “CJC”) in 2005. Noting that the document was the result of a public consultation concerning electronic access to court records and its impacts on the open court principle, individual privacy and security rights, the Findings cite the Model Policy’s guiding principles:
- “the open courts principle is a fundamental constitutional principle and should be enabled through the use of new information technologies;
- restrictions on access to court records can only be justified where:
- such restrictions are needed to address serious risks to individual privacy and security rights, or other important interests such as the proper administration of justice;
- such restrictions are carefully tailored so that the impact on the open courts principle is as minimal as possible; and
- the benefits of the restrictions outweigh their negative effects on the open courts principle, taking into account the availability of this information through other means, the desirability of facilitating access for purposes strongly connected to the open courts principle, and the need to avoid facilitating access for purposes that are not connected to the open courts principle”.
With regard to the use of the Internet for disseminating decisions, the Model Policy goes on to state:
However, if the judgments are posted on the Internet, it is a good practice to prevent indexing and cache storage from web robots or “spiders.” Such indexation and cache storage of court information makes this information available even when the purpose of the search is not to find court records, as any judgment could be found unintentionally using popular search engines like Google or Yahoo.
This good practice had been widely adopted in Canada by those who publish court and tribunal decisions on the Internet: the courts and tribunals themselves but CanLII and Lexum as well.
With the OPC’s Findings, the wisdom of the CJC’s advice can be fully measured today. This Canadian-designed balance between transparency and access on the one hand and individual privacy and security rights on the other hand proves to be adequate. The Findings are eloquent in this regards, at para. 32, the authors remark that:
“a number of complainants explicitly recognized the importance of the open court system, which meant that the decisions in question would be made available through online repositories. However, they did not feel that allowing broad availability of decisions containing their personal information through search engine results was necessary to ensure the transparency of the legal system – particularly given the associated emotional and reputational harms caused.”
The OPC clarifies the stakes:
- In our view, there is a significant difference between making court and tribunal decisions available online so that they are accessible to those who wish to consult past precedents and hold decision-makers accountable, and making those decisions – and their contents – indexable by popular search engines and available to anyone simply querying about another individual. As noted by the complainants in this case, indexing of court and tribunal decisions by search engines can provoke significant reputational harm and embarrassment to individuals by needlessly exposing sensitive personal information to inadvertent discovery.
The Office of the Privacy Commissioner’s findings are good news in many quarters. Those who justly resent the dissemination of their personal information entailed by the Globe24h scheme will find hope in the work and the announced continuing interest of the Office. The work done by the Judges Technology Advisory Committee of the Canadian Judicial Council, after having been used for ten years, has now been examined by a specialized authority and seems to constitute the balanced solution sought after in 2005. The CanLII policy in matter of access and the similar policy followed by various courts and tribunals across the country also seem to be validated in the Findings.
It remains to be seen how things will end up with Globe24h. One can only wishes that this shabby business will disappear soon.
The Globe24h Story
Having accumulated a nice lot of decisions, Mr. Radulescu turned his attention to monetization. The scheme finally chosen was to set up a site called Globe24h and to reference it on Google and some other search tools. From that point, when the name of a person was searched on Google, and if this name was present in one of the stolen decisions, a copy of this decision published by Globe24h appears in the search results. This result leads to a Globe24h copy of the decision where the user was invited to send 19 Euros to have his/her name redacted. The racket slightly evolved over the last two years while remaining essentially the same. More recently, the main business angle seems to have become a combination of using the content as a tacky advertisement support and a “spamdexing” basis.
By Daniel Poulin and Frédéric Pelletier