In Google LLC v. Canada (Privacy Commissioner), 2023 FCA 200, the Federal Court of Appeal recently determined that the federal privacy legislation, the Personal Information Protection and Electronic Documents Act (“PIPEDA”), applies to the Google search engine.
PIPEDA is the privacy legislation that applies to most private corporations in Ontario. It sets out rules to protect individuals’ privacy while attempting to balance the commercial interests of private corporations. A cornerstone of PIPEDA is the requirement of corporations to obtain the consent of an individual to collect, use and disclose their personal information.
A complaint was made to the Office of the Privacy Commissioner of Canada (“OPC”) alleging that the Google search results of the complainant yielded links to inaccurate, outdated and sensitive information about him contained in news articles. He alleged that Google’s disclosure of this information was exposing him to harm. The OPC directed a reference to the Federal Court to consider whether PIPEDA applied to Google search results, and if it did, was the operation of the Google search engine excluded from the application of PIPEDA because it involved the collection, use or disclosure of personal information for journalistic, artistic or literary purposes.
The Federal Court ruled that PIPEDA applied to the Google search engine service, and that the journalistic exclusion did not apply to it. Google appealed this decision.
The majority of the Federal Court of Appeal dismissed the appeal, upholding the reference judge’s decision. In their decision, the majority explained that search responses are displayed in the order an algorithm determines is of most relevance to the user. J.A. Laskin stated:
That is the purpose of Google Search. In carrying out that purpose, Google is agnostic as to the nature of that content: nothing turns on whether or not it is journalistic, let alone on whether it meets certain aspirational standards of journalism. Even if the search happens to return snippets that contain links to journalistic content, that cannot be said to be its purpose when Google is indifferent to whether or not it does so.
Google has the right to appeal this decision to the Supreme Court of Canada.
The Privacy Commissioner of Canada Philippe Dufresne issued a statement advising that “the decision brings welcome clarification to this area of the law.” The OPC will now continue its complaint investigation, and determine whether it should recommend to Google that the complainant’s name be delisted from its search results.
While the Federal Court of Appeal did not make a determination on whether there is a “right to be forgotten” in Canada (finding it was not required to determine the Charter arguments put forth by Google), the decision assists those fighting for such a right. While other jurisdictions provide individuals with a right to be forgotten, PIPEDA itself does not contain this specific right. The proposed Consumer Privacy Protection Act set out in Bill C-27 would introduce a right to be forgotten into federal privacy legislation, but its bumpy progress through the Standing Committee on Innovation and Technology hearings after second reading suggests it may be some time before Canadians have a statutory right to be forgotten.