Guidance on Application of PIPEDA to Google Search

In the context of investigation of a complaint under PIPEDA^[1] the Privacy Commissioner of Canada sought a reference to determine several preliminary issues.^[2] The claimant claimed Google violated PIPEDA when certain links to news articles pertaining to him arose in a search using the Google search engine. Google had taken the position that PIPEDA did not apply to Google, either, firstly, since the search service was not a commercial activity within the meaning of Section 4(1)(a) of PIPEDA^[3], and, secondly, if PIPEDA did apply then Google was excused since it was carrying out a journalistic activity that is excluded under Section 4(2)(c) of PIPEDA^[4].

In response to the individuals complaint about material published on a website Google advised that the individual how they could complain to the webmaster of the applicable website. The individual complained to the Privacy Commissioner of Canada.

After reviewing how the Google search engine works to collect, index and display search results the Associate Chief Justice addressed the questions.

The Court noted that “commercial activity” is broadly defined in PIPEDA as “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”.^[5] On the issue of whether this is done in a commercial context Google argued that its search and indexing service is a free service provided to content providers which is available also free of charge to users.

The Court noted that PIPEDA’s jurisdiction is based on the federal trade and commerce power.

The Court noted that Google operates very successfully on a for profit basis selling advertising and 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.”

As a result, the Federal Court found that Google, in the operation of its search engine service (when it indexes webpages and presents search results in response to searches of an individual’s name), does collect, use or disclose personal information in the course of commercial activities within the meaning of Section 4(1)(a) of PIPEDA. The impact of that decision is that these services and activities are subject to PIPEDA.

The second issue was whether the application of PIPEDA was excluded from Google since its activity was solely of a journalistic nature and excluded under Section 4(2)(c) of PIPEDA.

The Court noted that a “search for an individual’s name may return, for instance, content from personal blogs and websites, chatrooms, social media sites, websites of businesses, governments, non-governmental organizations, as well as news organizations” and as a result the information displayed from such a search is wide and varied and not limited to media content.

The Court found that in the operation of Google’s search engine service, Google collects, uses or discloses personal information when it indexes webpages and presents search results in response to searches of an individual’s name. The Court also noted that “the reasons why hyperlinks are not publication for the purposes of defamation^[6] are also relevant to search results – 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.”

The Court found that an “ordinary understanding of the word journalism encompasses content creation and content control”.^[7] The Court found that first, Google makes information universally accessible, which is much broader than informing a community about issues the community values; second, Google does not create or produce anything – it only displays search results; and third, there is no effort on the part of Google to determine the fairness or the accuracy of the search results. The publishers would be accountable for the accuracy of the content of a search result, not Google.^[8]

Finding that the operation of Google’s search engine does not satisfy the definition of journalism, the Court further noted that Section 4(2)(c) only applies to exclude PIPEDA if the organization collects, uses or discloses personal information for journalistic purposes, “for no other purpose”.

Finding that Google’s search service was not solely for a journalistic purpose and certainly not exclusively so. As a result, the Court concluded that PIPEDA applies to Google’s search service and is not excluded by Section 4(2)(c) of PIPEDA.

With that decision the review of this complaint may well, in the fullness of time, illuminate whether there is a “right to be forgotten” under Google.

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^[1] Personal Information Protection and Electronic Documents Act, SC 2000, c 5.

^[2] The reference was brought pursuant to subsection 18.3(1) of the Federal Courts Act, RSC 1985, c F-7, which allows a federal office to bring a question or issue of law, of jurisdiction or of practice and procedure to the Federal Court, at any stage of its own proceedings.

^[3] The question raised was “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) of PIPEDA when it indexes webpages and presents search results in response to searches of an individual’s name? “.

^[4] The question raised was “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?“.

^[5] See s 2(1) PIPEDA.

^[6] Relying on Crookes v Newton, 2011 SCC 47 at para 29.

^[7] The specific test set out in AT v Globe24h.com, 2017 FC 114 at para 68 was than an activity is journalism “where 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’”.

^[8] See Reference re Subsection 18.3(1) of the Federal Courts Act, 2021 FC 723 at para 85.