Federal Court decision a step towards determining whether Canada will have a right to be forgotten

‘The only thing that is, I think, really important about this case is what it didn't decide’: lawyer

Federal Court decision a step towards determining whether Canada will have a right to be forgotten
Maanit Zemel, Barry Sookman

The Federal Court’s finding that Canada’s private sector privacy law applies to Google’s use of personal information is a step towards eventually determining whether Canada will have a right to be forgotten, say two internet law lawyers.

“I wasn't surprised one bit about the decision,” says Barry Sookman, senior counsel with McCarthy Tétrault LLP. “But what I find quite disturbing is that the procedure that was adopted was directed not to getting the central questions in the case answered, but to hiving off questions one at a time.”

“The only thing that is, I think, really important about this case is what it didn't decide.”

Central to the matter is whether Google has an obligation under PIPEDA to delete personal information in certain circumstances, says Sookman, who is former co-chair of the McCarthy’s Technology Law group and former head of the firm’s Internet and Electronic Commerce Group.  

“The court didn't get to that question. And the more fundamental question is the one that Google has been trying, since the inception of the case to get argued, which is that, if [the Personal Information Protection and Electronic Documents Act (PIPEDA)] does in fact apply to it, does that violate the Charter of Rights and Freedoms?”

“What's really frustrating is to see a number of interim decisions that just delay the resolution of the ultimate questions, which are really important as a matter of Canadian public policy.”

Maanit Zemel predicts Google will “drag this out” and appeal the matter up to the Supreme Court of Canada. Zemel is partner at Zemel van Kampen LLP and practises internet law and civil and commercial litigation, focussing on Canada’s Anti-Spam Legislation, online defamation, privacy, and data security.

The result that PIPEDA applies to Google’s search engine means a person can apply to the Office of the Privacy Commissioner (OPC) and file a complaint that Google’s search results violate their privacy and the OPC can then make the call that Google is not complying with PIPEDA and tell them to take the content down, says Zemel.

But that does not mean Google will take it down, she says.

“It doesn't matter. This is entirely academic. And why is it entirely academic? Is because currently under PIPEDA, our regulator, the OPC, has no effective enforcement mechanism.”

The OPC has no authority to apply penalties for non-compliance, says Zemel.

“The positive side of this for those of us who think there should be a right to be forgotten, is that it sets the baseline.”

Now that PIPEDA applies to Google, the company must consider the reputational damage that it is non-compliant with privacy legislation, she says. The federal government has also tabled draft amendments to PIPEDA in Bill C-11, which would give the OPC the enforcement powers it needs to make Google comply.

“They'll be able to order compliance and they will be able to place significant fines for non-compliance,” says Zemel. “… This is the first stage towards a right to be forgotten in Canada, which we currently do not have.”

The case originated with the Privacy Commissioner of Canada bringing a reference to answer a question of law, under the Federal Courts Act, as part of its investigation into a complaint against Google. The complainant alleged the company was in contravention of the Personal Information Protection and Electronic Documents Act (PIPEDA) for listing links to news articles containing personal information.

In addition to the 2017 complaint, the OPC has been exploring online privacy issues, including whether a right to be forgotten, could apply in Canada, since 2016.

The OPC submitted two reference questions: Does Google’s search engine “collect, use or disclose personal information in the course of commercial activities” within the meaning of p. 4.1(a) of PIPEDA? And is that collection excluded from PIPEDA’s application because it is done in aid of “journalistic, artistic or literary purposes?”

The OPC’s 2018 Draft Position Paper said PIPEDA applies to Google “in certain circumstances” and Google “might be required to remove links” containing personal information. Google’s position was that its search engine was not engaged in “commercial activity” and alternatively, it is a “journalistic or literary operation.” Google also said, if PIPEDA requires it to “delist lawful public content,” the legislation is contrary to the freedom of expression protection in the Charter.

To the first question, Federal Court Associate Chief Justice Jocelyne Gagné answered, yes, Google’s use of personal information counts as commercial activity and PIPEDA applies. As to whether it falls under the journalistic or literary exception, Justice Gagné said it did not.

The Court did not deal with the Charter issue, as Justice Gagné said Google’s argument was circular. Google submitted that PIPEDA infringes its Charter rights, but also that PIPEDA does not apply to the company. For PIPEDA to breach Google’s Charter rights, the law “must first apply to Google in one way or another,” she said.

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