Canada: The Privacy Commissioner, Search Engines And The Media – A Battle Over The "Right To Be Forgotten"

Last Updated: July 16 2019
Article by Chloe A. Snider

In 2018, the Office of the Privacy Commissioner of Canada ("OPC") began a reference to the Federal Court under subsection 18.3(1) of the Federal Courts Act (the "Reference") in the context of an OPC investigation into a complaint made by an individual against Google. The complainant alleges that Google is contravening the Personal Information Protection and Electronic Documents Act ("PIPEDA") by continuing to display links to news articles concerning the complainant when his name is searched using Google's search engine. He requested that Google remove the articles from search results using his name (otherwise known as de-indexing).

In the Reference, the OPC referred two questions of jurisdiction that arise from the complaint to the Federal Court. The two questions are:

  1. 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 webpages 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 the application of Part I 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?

This Reference caused many, including the media, to ask whether Canadians would soon have the 'right to be forgotten' online1 (perhaps as a result of the development of this right in Europe).2

Concerns about a 'right to be forgotten', and its implications, led the Canadian Broadcasting Corporation and a group of Canadian media organizations to seek to be added as parties to the Reference (or, in the alternative, to be granted intervenor status). It also prompted Google to bring a preliminary motion to add a constitutional question (concerning freedom of expression) to the Reference, or otherwise to strike out the Reference.

In recent months, the Federal Court has released reasons on both of these motions – dismissing them both.

Media Coalition Motion

In Reference re subsection 18.3(1) of the Federal Courts Act, 2019 FC 261, decided on March 1, 2019,the Federal Court dismissed the media coalition's motion to be added as a party to the reference or to become an intervenor.

The media coalition argued that the OPC's reference question is merely a threshold issue to the implementation of "the right to be forgotten", and that the content they provide will inevitably be de-indexed if the OPC's regulation of search engines is found to be lawful. In particular, they argued that the news stories that triggered the complaint were published by their members, and that the de-indexing would affect them directly. They also submitted that their right to freedom of expression under section 2(b) Charter were directly engaged, and would be breached if de-indexing were ordered.

The Federal Court started its analysis of the issues raised by the media coalition by determining "what is truly at issue in the underlying proceeding". It disagreed with the media parties that the issue was whether the OPC's proposed regulation of internet searches offends the right to freedom of expression enshrined in the Charter. According to the Federal Court, this formulation "ignores the reference questions as expressly formulated" and transforms the jurisdictional issues as framed in the Reference "into the final, ultimate determination of all matters". The Federal Court held that instead, "what is truly at issue in this application is whether Part 1 of PIPEDA applies to Google in respect of its collection, use or disclosure of personal information in the operation its search engine service".

The Federal Court recognized that this issue would require consideration of the Charter. However, the Court distinguished between "using the Charter as an aid to statutory interpretation and using it to challenge the applicability or validity of the statute". The Court determined that the Reference questions framed contemplate the consideration of the Charter in interpreting sections 4(1)(a) and 4(2)(c) of PIPEDA, but do not include the determination of whether their application would contravene the Charter. Accordingly, the Court accepted the OPC's proposed issues on the applicability of PIPEDA to search engines as the true issues for future proceedings.

Based on this narrow framing of the question, the media coalition was not a proper or necessary party. No complaint was made against the media parties in the underlying complaint, and there was no statutory or regulatory authority to add the media coalition as a party.

The court also explained that for the media coalition to be considered necessary to the Reference, it had to prove that it was bound by the result of the action, and that the question to be settled could not be "effectually and completely settled" without them as a party.3 However, in this case, the practical effect of de-indexing would only require Google to take action; therefore, while members of the media coalition would be "affected", no members of the media coalition would be "bound" by the result.

In the alternative, the media coalition sought intervenor status to be able to participate in the Reference. The court held that the coalition's argument on this issue relied in large part on the same Charter assumption as to what was truly at issue in the Reference. Accordingly, the court held that the media coalition's motion for leave to intervene was premature. Further the media coalition had not explained the nature of the evidence and arguments they intended to put forth as intervenors. This was fatal to their motion.

While the Court denied the media coalition's motion to be added as a party or to be granted intervenor status, the court allowed the coalition to reapply for intervenor status in the future.

Constitutional Question Motion

On a separate motion, Google sought relief that would have had the effect of recognizing the inclusion of constitutional issues relating to freedom of expression under section 2(b) of the Charter in the issues to be decided on the Reference or, alternatively, striking out the Reference. In reasons dated April 16, 2019, in Reference re subsection 18.3(1) of the Federal Courts Act, 2019 FC 464, the Federal Court dismissed this motion.

First, the Federal Court held that the scope of a reference cannot be varied. The plain reading of section 18.3 of the Federal Courts Act (which, as noted, permits reference), precludes a party to a reference from adding to or modifying the scope of the questions that the tribunal has chosen to refer to the Federal Court. According to the Federal Court, Google did not have an absolute right to demand and obtain the resolution of a constitutional issue "at any time and any stage of a judicial or administrative process". Simply put: "There are no mechanisms by which the Court or a party to a reference might intervene to approve, rephrase or expand the scope of the reference questions."

The sole remedy available would be to strike the Reference – which can only be done where it is plain and obvious that it is irregular or without merit. In this case, the Federal Court decided against striking out the Reference. For reasons similar to those given on the media coalition's motion, the Federal Court did not accept Google's submissions (1) that deciding the reference without addressing the constitutional issues would be untenable because it would fail to put an end to the substantive dispute as to whether using PIPEDA to censor Internet search engines is constitutional, and would result in litigation by instalment; and (2) that this would result in an abuse of process that would unduly undermine Google's substantive rights.

First, the Federal Court held that Google's rights would not be affected as it was "not at all plain that the resolution of the questions as phrased presupposes or determines the constitutional validity of the eventual or hypothetical application of PIPEDA to Internet search engines." If the Reference result is that PIPEDA does not apply, then the issue of its constitutional validity does not arise. And even if the result were otherwise, Google would still have rights available to it through the de novo review process, at which time Google could raise the constitutional issues.

With respect to the arguments about bifurcating the proceeding, and litigation by installment, the Federal Court held that this argument rested "on the incorrect assumption that the answer to the reference cannot put an end to the dispute and on speculation as to the outcome of an eventual investigation". Further, the Court held that the Reference by its very nature gives rise to a bifurcation of the proceedings commenced by the complaint, and that this bifurcation was therefore acceptable.

Implications

While it is still too early to determine the impact of these two decisions, they do suggest that the Federal Court may take a narrow approach to the Reference – and forego the opportunity to address a Canadian "right to be forgotten" – leaving that to another day or another proceeding. While this may be beneficial to parties like Google and the media coalition, insofar as there is no determination of this issue in a way that would have broader implications, this Reference is likely to create uncertainty about the "right to be forgotten" and its status in Canada.

Given the OPC's indication that its position is that there exists a right to request de-indexing,4 this issue will need to come to a head in the near future. The discussion about whether there is such a right, and what its scope should be, warrants full debate, with input from all groups with an interest at stake. The Federal Court has now decided the Reference is not the place for this debate. The question remains – what is the right forum?

For now, the issue to watch will be whether the operation of a search engine service to index webpages and present search results in response to searches of an individual's name constitutions the collection, use or disclosure of information under PIPEDA. This issue too could have broad implications, as it relates to the characterization of search engine services, and other online services, and whether those services are commercial activities that are subject to PIPEDA. Google's desire to address the constitutional issue may be unnecessary should this issue be determined in its favour.

The authors thank Noah Walters, a summer student in our Toronto office, who contributed to this article.

Footnote

1 See https://nationalpost.com/news/politics/will-canadians-soon-have-the-right-to-be-forgotten-online-heres-what-you-need-to-know.

2 See (among other things) the decision of the Court of Justice of the European Union in Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González, Case C-131/12, ECLI:EU:C:2014:317.

3 Stevens v Canada (Commissioner, Commission of Inquiry) [1998] 4 FC 125.

4 See the OPC's Draft Position on Online Reputation, https://www.priv.gc.ca/en/about-the-opc/what-we-do/consultations/consultation-on-online-reputation/pos_or_201801/, stating: "the OPC is of the view that PIPEDA applies to a search engine's indexing of online content and display of search results. As such, search engines must meet their obligations under the Act." This would include "allowing individuals to challenge the accuracy, completeness and currency (the extent to which the information is up-to-date) of results returned for searches on their name."

About Dentons

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com

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. Specific Questions relating to this article should be addressed directly to the author.

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
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions