Last week, the Privacy Commissioner of Canada filed a reference with the federal court in a case that was billed as settling the “right to be forgotten” issue. Yet a careful read of the application reveals that the case isn’t about the right to be forgotten. Rather, it involves a far more basic issue: is Google’s search engine service subject to PIPEDA, Canada’s private sector privacy law? The case arises due to a right-to-be-forgotten complaint (a complainant wants search results referencing news articles they say are outdated, inaccurate, and disclose sensitive information removed from the Google search index), but the court is not being asked whether the current law includes a right-to-be-forgotten. Instead, the very application of Canadian privacy law to Google search is at stake.
The two questions in the reference are as follows:
1. Does Google LLC (“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 searches of an individual’s name?
2. Is the operation of Google’s search engine service excluded from 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?
Google maintains that the right to be forgotten would violate the Canadian Charter of Rights and Freedoms, but given the limited scope of the application the court does not need to address the issue. The Privacy Commissioner argues that it first needs certainty on the application of the law to Google search. If it applies, the Commissioner will proceed with a complaint investigation. The application is a bit surprising given that the record before the court is very thin. The Commissioner could presumably have conducted the investigation, reached a finding, and then had the issue raised before the courts with a stronger record and all the issues on the table.
While the issue in the reference may surprise some given that Google’s economic success, federal privacy law is limited to commercial activities and contains several notable exceptions. As I argued when the Privacy Commissioner first raised the right to be forgotten issue in a consultation earlier this year:
there is reason to doubt whether the Personal Information Protection and Electronic Documents Act (PIPEDA) applies to search results. Federal privacy law is limited to commercial activity, yet search results are typically provided at no cost to the user nor the sites being indexed. Indeed, all the activity behind search – indexing content, developing algorithms to identify relevant results, and the display of those results – fall outside a conventional commercial transaction. There may be paid results or other advertising displayed with some search results, but those are arguably secondary to the indexing, ranking, and display of the relevant links.
Moreover, David Fraser unpacked the arguments around the exception for journalistic or literary purposes in this 2016 post, noting:
Search engines are fundamentally journalistic or literary operations, particularly when providing a user with access to news media content. At the same time, they are also providing news media producers with access to readers.
The analysis suggests that the Privacy Commissioner’s reference is no slam dunk. Indeed, there are strong arguments that PIPEDA does not apply to the search indexing and display. The right to be forgotten is problematic for several reasons, but the issue – along with the limited scope of PIPEDA – would be better addressed as part of a long overdue review and update to Canada’s privacy laws.