Google Is Subject to PIPEDA in Canada

The Internet, it is proverbially thought, lives forever. That is, until jurisdictions around the world started to develop the “right to be forgotten.”

In 2017, a complaint was made to the Privacy Commissioner of Canada that Google violates the Personal Information Protection and Electronic Documents Act (PIPEDA), by displaying links to news articles with personal and sensitive information about him.

This wasn’t the first privacy complaint that the Commissioner faced about Google, which previously included Wifi data collection. The Commissioner has also investigated other businesses that index private information that is maintained or removed on Google, or businesses that have taken private information from social media and indexed it. Earlier this year, the joint investigation of Clearview AI, Inc.’s facial recognition tools and biometric identifiers.

This complaint about the news articles was followed by a draft position by the Commissioner, and referred it to the Federal Court in 2018. That decision in Reference re Subsection 18.3(1) of the Federal Courts Act was just released, and focused on two questions:

  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) ofPIPEDA 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?

The court responded to the affirmative to former question, and negative to the latter, meaning that Google’s search engine is now definitively governed by Canada’s privacy laws from a jurisdictional perspective. However, that does not resolve the matter entirely, as Google had raised Charter arguments at an early stage at the time of the original complaint, and unsuccessfully attempted to have them raised in Reference.

Google again attempted to raise the Charter issues in the recent decision, but the court rejected those attempts once again, stating,

[23] In my view, the third issue contains a contradiction. Courts should, in fact, refrain from addressing constitutional issues without an adequate evidentiary record. As indicated in the July Order, these questions are left for the Commissioner who will benefit from a complete evidentiary record and will be in a better position to assess whether PIPEDA can be applied in the way the Complainant wishes it to apply, without violating Charter values. Therefore, the Court will answer the Reference questions, and only those questions.

Because commercial activity is broadly defined under PIPEDA, and Google sells advertising space and profits from ads associated with searches, its activities meets the definition of commercial activity under the Act.

The court rejected Google’s submissions on the information economy, suggesting that it collected and used information for the use of others,

[39] PIPEDA is quasi-constitutional legislation because its focus is on ensuring that individuals can control their personal information, which is intimately connected to their individual autonomy, dignity and privacy (Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 4012013 SCC 62 at para 19 [United Food]). However, this does not change the exercise of statutory interpretation to be undertaken by the Court (Lavigne at para 25).

[50] Google’s search engine allows individuals to search for content, including text, images and videos, found on webpages that make up the World Wide Web. When a user enters a search query, Google’s proprietary computer algorithms cross-reference its index and identifies the content that Google considers relevant to the query. Its algorithms take into account a number of factors, including the search terms used, a user’s past searches, the user’s location, and the perceived quality of a webpage to determine which search results are, in Google’s view, most relevant to a user.

[51] Google is a for-profit corporation and one of the most successful technology businesses of the modern era. Its search engine is far and away the most dominant with some estimates suggesting that it is used to conduct 70-75% of all internet searches globally. According to Google, its search engine is used to conduct millions of searches each day. The popularity of its search engine and its other products have made Google one of the most profitable corporations today. Google’s parent company reported that it earned approximately $63.5 billion (USD) from Google in the first half of 2018 alone.

[52] The bulk of Google’s revenue comes from advertising (roughly $54.7 billion in the first half of 2018). Most of Google’s advertising revenue is in turn generated from Google’s search engine and other online services. As Google notes, “[m]uch of our business is based on showing ads, both on Google services and on websites and mobile apps that partner with us” (Exhibit S-17 to the Lachance affidavit). Google’s growth in revenue for the second quarter of 2018 was “primarily driven by increases in mobile search resulting from ongoing growth in user adoption and usage, as well as continued growth in advertiser activity” (Exhibit S-25 to the Lachance affidavit). Google also experienced “growth in desktop search due to improvements in ad formats and delivery” (Exhibit S-25 to the Lachance affidavit).

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.

Google attempted to rely on the journalistic exceptions under PIPEDA to claim that it does not apply, as the purpose of it is to protect Charter rights like freedom of speech. Although this exemption is broadly interpreted, the Commissioner argued that it should not be so broad as to include indexing and displaying.

Although Google facilitates access to information, including news and media articles, facilitation of information is not the only indicator of publication. The court relied on the decision in Crookes v Newton to illustrate that because Google does not control the search results, and the results themselves express no opinion, Google could not be a publisher that is creating the contents of the search results,

[27] Hyperlinks are, in essence, references. By clicking on the link, readers are directed to other sources. Hyperlinks may be inserted with or without the knowledge of the operator of the site containing the secondary article. Because the content of the secondary article is often produced by someone other than the person who inserted the hyperlink in the primary article, the content on the other end of the link can be changed at any time by whoever controls the secondary page. Although the primary author controls whether there is a hyperlink and what article that word or phrase is linked to, inserting a hyperlink gives the primary author no control over the content in the secondary article to which he or she has linked. 

Now that the courts have found that PIPEDA has jurisdiction over Google, it is inevitable that Google will challenge that jurisdiction under the Charter. This decision though brings Canada one step closer to a right to be forgotten in this country.

Start the discussion!

Leave a Reply

(Your email address will not be published or distributed)