Canada: Canada's Federal Court Awards Damages Against A Foreign Website For Breach Of Privacy Laws

In a recent decision, A.T. v Globe24h.com, 2017 FC 114, Canada's Federal Court asserted jurisdiction over a foreign-based website that republished Canadian court and tribunal decisions from Canadian legal websites and allowed them to be indexed and rendered searchable on Google and other search engines.

The Court declared that the owner and operator of the website, based in Romania, contravened the provisions of the federal private sector privacy legislation (the Personal Information Protection and Electronic Documents Act - PIPEDA), by collecting, using and disclosing online personal information contained in publicly available legal decisions for inappropriate purposes, and without the consent of the individuals concerned. The owner and operator was further ordered to:

(1) remove all Canadian decisions containing personal information from the website and to take necessary steps to remove these decisions from search engine caches;

(2) refrain from further copying and republishing Canadian court and tribunal decisions in a manner that contravenes PIPEDA; and

(3) pay $5,000 in damages.

Background

Investigation of Complaints under PIPEDA by the Privacy Commissioner

PIPEDA governs the collection, use and disclosure of personal information in the course of commercial activities. PIPEDA defines "personal information" very broadly as any information about an identifiable individual. The cornerstone of PIPEDA and substantially similar provincial privacy laws is that personal information must be collected, used and disclosed only with the consent of the individuals concerned (subject to limited exceptions) and for purposes that a reasonable person would consider appropriate.

The Privacy Commissioner of Canada can investigate complaints under PIPEDA under section 12 of PIPEDA and may issue a report of findings at the conclusion of an investigation. Within a year of receiving the Commissioner's report or being advised that an investigation has been discontinued, a complainant may apply to the Federal Court for a de novo hearing in respect of any aspect of the complaint.

Application for a hearing before the Federal Court

In this case, an application for a de novo hearing was made under section 14 of PIPEDA. The applicant was a Canadian resident originally from Romania. The respondent, based in Romania, was the sole owner and operator of Globe24h.com ("Globe24h"), a website hosted on a Romanian-based server that republished public documents from a number of countries, including Canada.  

The Canadian court or tribunal decisions published on Canadian legal websites, such as the publicly available CanLII.org, were republished on the respondent's website, "Globe24h". Unlike the Canadian legal websites, Globe24h allowed third party search engines such as Google to index the decisions and make them available within search engine results for the individuals' names. The decisions contained personal information about the individuals or their families, revealing personal matters related to health, finances, employment, immigration status and family matters such as divorce and custody proceedings. When the affected individuals complained, the website's owner and operator sought payment in exchange for the timely removal of the results.  In response, 49 individuals filed complaints with the Privacy Commissioner and over 150 complaints were received by CanLII.org.

The applicant filed a complaint to the Privacy Commissioner on the basis that the website collected, used and disclosed his personal information in violation of PIPEDA. The applicant was concerned that his personal information appearing in a labour relations decision, made easily accessible to the public through search engines, would affect his future employment prospects. The Privacy Commissioner determined that the applicant's complaint was well-founded.

PIPEDA's  Extraterritorial Application to Foreign-based Organizations

The Federal Court of Canada has previously determined that PIPEDA will apply to a foreign-based organization where there is evidence of a sufficient connection between the organization's activities and Canada. The relevant connecting factors include:

  • the location of the target audience of the website;
  • the source of the content on the website;
  • the location of the website operator; and
  • the location of the host server.

In this case, the website operator and host server were located in Romania. However, the Court held that when an organization's activities take place exclusively through a website, the physical location of the website operator or host server is not determinative. In the Court's view, there were three key connecting factors to Canada as follows:

(1)  the content was of Canadian origin, consisting of Canadian legal decisions;

(2)  the website directly targeted Canadians by listing Canadian case law, and the majority of visitors were from Canada; and

(3)  the impact was felt by Canadians as evidenced by numerous complaints to the Privacy Commissioner and Canadian media reports.

The Court noted that Romanian authorities had cooperated with the Privacy Commissioner's investigation, and had taken action to curtail Globe24h's activities including by issuing a fine against it for contravening Romanian data protection laws. However, this fact did not prevent the Court from asserting jurisdiction over the matter, on the basis that the Court's findings would complement rather than offend any action that taken in a Romanian court. Although the Court expressed concerns about the enforceability of any order it issued against a party who was not physically present in Canada, the Court reasoned that the issuance of a corrective order in Canada could assist the applicant both in pursuing his remedies in Romania and in persuading the operators of search engines to de-index the pages carried by the respondent website.

An Organization's Purposes for Collecting, Using and Disclosing Personal Information must be "Appropriate"

The Court agreed with the Privacy Commissioner's findings that Globe24h.com's activities did not constitute an appropriate purpose for the collection, use and disclosure of personal information, within the meaning of section 5(3) of PIPEDA. The Court rejected the respondent's  argument that the intention behind the publication of the Canadian decisions was to inform the public on matters of public interest. Rather, the Court found that the website's primary purpose was to incentivize individuals to pay to have their personal information removed from the website. A secondary purpose was to generate advertising revenue by driving traffic to the website through the increased exposure of personal information in search engines. In the opinion of the Court, these purposes could not be considered as appropriate from the perspective of a reasonable person.

The "Journalistic Purposes" Exemption was Inapplicable

Section 4(2)(c) of PIPEDA contains an exemption which applies where the information is collected, used or disclosed exclusively for journalistic purposes. The court rejected the respondent's claim that the purpose of republication was journalistic in nature, on the basis that the website added no value to the original freely accessible publications by way of commentary, additional information or analysis. Instead, the website exploited the content by demanding payment for its removal.

The "Publicly Available Information" Exemption was Inapplicable

Section 7 of PIPEDA contains an exemption for certain specific categories of "publicly available information", one of which is personal information contained in court or tribunal documents. However, any republication of such information must relate directly to the original purpose for which the documents were published, i.e. to uphold the open court principle protecting the general right of the public to have access to court proceedings.  The Court agreed with the Privacy Commissioner that in this case, the exemption was unavailable to the respondent, since the website's purposes did not relate directly to the open court principle, but actually undermined the administration of justice by discouraging people from accessing the justice system.

Remedies Under Section 16 of PIPEDA

The Court opined that a declaration that Globe24h had contravened PIPEDA, combined with a corrective order, would allow the applicant and other complainants to submit a request to search engines to remove links to decisions on Globe24h.com from their search engine results. The Court further held that a broad corrective order was warranted in this case because the effects of Globe24h's actions were not confined to the applicant.

The Court also held that monetary damages of $5,000 were warranted based on the conduct of the owner and operator of the website, and for the purpose of vindication and deterrence of further privacy breaches. The Court characterized the breach as "egregious", based on its finding that the respondent had essentially made a business of exploiting the privacy of individuals for profit, and had acted in bad faith in failing to take responsibility and rectify the problem.

Conclusion

While the monetary damages awarded in this case were modest, the Court sent a clear signal that damages will be awarded where the privacy rights of Canadians are disregarded in the pursuit of profit, in a manner that is non-compliant with Canadian privacy laws. The Court has also reinforced that foreign-based organizations operating online and handling the personal information of Canadians will not be able to escape liability on the basis that the website operator and/or host are physically located outside of Canada.

Finally, the decision emphasizes that available exemptions under PIPEDA are limited and specific, and will be interpreted narrowly in order to afford maximum protection to individual privacy interests. Organizations must have legitimate purposes for the collection, use and disclosure of personal information, and even that information which is publicly available will be protected where its collection, use and disclosure is considered exploitive and inconsistent with the original purposes for which it was made available. 

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
14 Sep 2017, Seminar, Birmingham, UK

Has Cloud replaced traditional outsourcing models? We will compare cloud to outsourcing, consider whether they have effectively become the same thing for many solutions and assess some of the advantages and disadvantages of each model.

18 Sep 2017, Seminar, London, UK

Our annual event as part of the London Design Festival is now in its fifth year. We would be delighted if you are able to join us again.

21 Sep 2017, Seminar, London, UK

Has Cloud replaced traditional outsourcing models? We will compare cloud to outsourcing, consider whether they have effectively become the same thing for many solutions and assess some of the advantages and disadvantages of each model.

 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.