On September 29, 2023, the Federal Court of Appeal (the Court) released its decision on a reference by the Privacy Commissioner of Canada (the Commissioner) in Google LLC v Canada (Privacy Commissioner).1 Writing for the majority of the Court, Justice Laskin agreed with the reference judge that Part 1 of the Personal Information Protection and Electronic Documents Act (PIPEDA) applies to Google LLC (Google)'s operation of its search engine, Google Search; since Google Search involves the collection, use, or disclosure of personal information for commercial interests, it is not covered by PIPEDA's "journalism purpose" exemption.
Background
An individual complained to the Commissioner that they suffered harm, employment discrimination, and social stigma as a result of Google returning outdated and inaccurate results when searching their name using Google Search.2 Google responded that the issue should be resolved directly with the owner of the website publishing the information.3
The Commissioner expressed the view that PIPEDA applies to online search engines like Google Search, and that in certain circumstances it could require removal of links to content containing personal information.4 Specifically, the Commissioner maintained that Google engages in commercial activity in two ways: (a) Google sells advertising space associated with searches, thus earning money when users click on ads; and (b) Google collects data from users to disclose more targeted ads in the future.5 Before addressing the complaint, the Commissioner had started a public consultation on the issue of online reputation and on whether a "right to be forgotten" could apply in Canada. However, nothing in the Commissioner's reference turned on this issue.
Google's position was that, as an intermediary, it is simply not subject to PIPEDA because it is not a publisher; rather, it merely organizes information and disseminates third parties' free speech.6 Google also argued that Google Search is a journalistic or literary operation within the meaning of the exemption in paragraph 4(2)(c) of PIPEDA.
The reference by the Commissioner
Upon considering Google's response, the Commissioner referred the following jurisdictional questions to the Federal Court:
- 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 web pages and presents search results in response to a search of an individual's name?
- 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?7
The reference judge determined that Google has a clear commercial interest in connecting content providers with users of Google Search.8 Therefore, unless it is forced to do so, Google has no commercial interest in de-indexing or de-listing information from its search engine. The reference judge concluded that every component of Google's business model is a commercial activity as contemplated by PIPEDA.9
On whether PIPEDA's "journalistic purpose" exemption applied to Google, the reference judge determined that the personal information that can be displayed in response to searches for an individual's name is wide and varied, it is not limited to media content, and it can lead to a detailed portrait of an individual.10 Moreover, Google does not determine the fairness or accuracy of the information it displays,11 and so Google's purposes for collecting, using, and disclosing personal information for Google Search are not journalistic, and certainly not exclusively so.12
The appeal decision
On appeal, the Court held that the Google Search engine falls outside the journalistic exemption in paragraph 4(2)(c) because the purpose of Google Search is to display responses to a user search query ranked in the order that Google considers most relevant to the user, as determined by its algorithms. In carrying out that purpose, Google does not consider the nature of the content—its operations do not turn on whether content is journalistic.13
Justice Webb's dissent reasoned that Google's commercial purpose in collecting information is only to index this information, to make it universally accessible, in the same way television or radio station operators collect news articles relying on the journalists who write the articles to have verified the accuracy of the information. Since Google's search engine collects and discloses journalistic articles, it should benefit from the journalistic purpose exemption and be excluded from application of Part 1 of PIPEDA.14
Google had also attempted to broaden the scope of the Commissioner's reference by raising its freedom of expression. However, the Court held that there was no error in how the reference judge disposed of the Charter issue by refraining from addressing constitutional questions in the absence of an adequate evidentiary record.
Takeaways
Although journalism can be interpreted broadly and PIPEDA's journalism purpose exemption applies in different circumstances, the Court held that it does not apply to the all-encompassing indexed information displayed in response to a user search query using Google Search. The Court did not comment on whether or how its decision may affect developments around balancing privacy and other rights, such as freedom of expression and a right to be forgotten.
Footnotes
1. Google LLC v Canada (Privacy Commissioner), 2023 FCA 200.
2. Reference re Subsection 18.3(1) of the Federal Courts Act, 2021 FC 723 at para 7 [Reference re Subsection 18.3(1)].
3. Reference re Subsection 18.3(1) at para 7.
4. Reference re Subsection 18.3(1) at para 9.
5. Reference re Subsection 18.3(1) at para 26.
6. Reference re Subsection 18.3(1) at para 34.
7. Reference re Subsection 18.3(1) at para 28.
8. Reference re Subsection 18.3(1) at para 57.
9. Reference re Subsection 18.3(1) at para 59.
10. Reference re Subsection 18.3(1) at para 80.
11. Reference re Subsection 18.3(1) at para 63.
12. Reference re Subsection 18.3(1) at para 95.
13. Google LLC at para 90.
14. Google LLC at paras 106-114.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
