Google subject to federal law on the protection of privacy but the question of the “right to be forgotten” remains undecided: lawyers

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A Federal Court judge has ruled that Google search results are subject to federal privacy law, but legal watchers point out that it could be some time before a final decision is made. or take on the existence of a broader “right to be forgotten” in Canada.

The genesis of the Court’s judgment in Reference re subsection 18.3 (1) of the Federal Courts Act 2021 FC 723 dates back to June 2017, when a complaint was filed with Federal Privacy Commissioner Daniel Therrien claiming that Google was in violation of the Personal Information Protection and Electronic Documents Act (PIPEDA). The person behind the complaint, whose identity is confidential, claimed that articles published about them via Google’s search engine were inaccurate and disclosed sensitive information, causing job losses, a social stigma and had even led to assault.

Therrien took the case to Federal Court, Associate Chief Justice Jocelyne Gagné having ruled on July 8 that Google searches were subject to PIPEDA. It rejected the tech giant’s argument that its search engine results were not commercial activity.

“Even though Google provides free services to content providers and the search engine user, it has a clear business interest in connecting these two players,” she writes. “In exchange for the information displayed in search results, users provide a variety of personal information (their location, preferences, interests, spending habits, etc.). This personal information is used for profit.

Every component of Google’s business model is a business activity as contemplated by PIPEDA, wrote Associate Chief Justice Gagné.

“Google has no business interest in deindexing or removing information from its search engine,” she wrote. “To have a microscopic look at the free (ie no cash payment) aspect of research for the user, or the free aspect of the ‘library service’ provided to the media would be … a misunderstanding of Google’s business model. All of these activities are intertwined, they depend on each other, and they are all necessary components of this business model. “

And Associate Chief Justice Gagné also rejected Google’s secondary argument that its research was exempt from PIPEDA regulation because it fell under an exception for journalistic works.

“An ordinary understanding of the word journalism encompasses the creation and control of content,” she wrote. “The main goal of Google’s search engine service is to index and present search results. This is not a primarily journalistic goal because although it may facilitate access to information, it does not contain any other defining characteristics of journalism, such as content control or content creation. Even though Google returns journalism in its search results, its search results clearly extend beyond journalism. “

Despite the court’s ruling, people were quick to point out that it had not commented on the idea of ​​deindexing information (sometimes called a “right to be forgotten”) in Canada, the initial complaint yet to be decided by the Office of the Privacy Commissioner. Director of Strategic Communications Valerie Lawton said in an email that she welcomed Associate Chief Justice Gagné’s ruling, but could not provide further comments due to the investigation.

Mark Phillips, lawyer

Mark Phillips, who was the original plaintiff’s lawyer, said the right to be forgotten is a popular term in the media, but this case specifically deals with a subset of it – the removal of confidentiality from the media. search engines or deindexing information. He said what his client is looking for is similar to what exists in Europe, where you have the right to request that your name be removed from search engine results.

“It is important to note that you do not have the right to have it removed, and there is a whole set of criteria for doing so and the majority of applications are rejected,” he said. “And it’s also important to keep in mind that the web pages that these searches link to still exist if even though the search result no longer appears, the remedy is designed in such a way that it does not appear. acts as searches or to include the name of the person for whom the the result is deleted.

David Young of David Young Law, a privacy and regulatory law firm in Toronto, said the right to be forgotten includes not only the removal of material that has been posted to your subject, but also things you have posted about yourself.

“But the question of deindexing is a question that must be answered. Everything PIPEDA contains is essentially a rule for obtaining your consent for the use of information – it does not clearly apply to indexed search results, especially when that information is collected from someone else. other than the individual, ”he said. “This decision is a green light for the Privacy Commissioner to move forward and investigate. And there are still remedies that can be pursued. “

And despite the green light, there’s probably still a long way to go for the initial complaint. Phillips said he had “very good reason” to suspect that the Privacy Commissioner would find in favor of his client, but noted that the office only had the power to make a recommendation, to so the power to make an order should be in the Federal Court.

“What if and when we do end up in court, is that the process will really determine this question of whether there is a right to opt out of search engine privacy,” he said.

Google’s attorney declined to comment for this article.

If you have any information, ideas for articles or tips for The Lawyer Daily please contact Ian Burns at [email protected] or dial 905-415-5906.


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