A Canadian court has again rejected Google’s claim for an exemption from federal privacy law for its search engine results in case raising the so-called “right to be forgotten.”
The first time Google lost was in a July 2021 decision by Federal Court Judge Jocelyne Gagné, who dismissed arguments that the Personal Information Protection and Electronic Documents Act (PIPEDA) doesn’t apply to its search engine results because search side of the company isn’t a commercial enterprise, and because search results are used for journalism. PIPEDA’s obligations don’t apply to journalistic endeavors.
“Google promotes its advertising business by highlighting the popularity of its search engine,” the judge wrote. Even if it provides free services to content providers and the user of the search engine, “it has a flagrant commercial interest in connecting these two players,” she added. It is a commercial entity, the judge concluded, and not a publisher of news.
Google appealed that decision to the Federal Court of Appeal, and lost again. On Friday the court ruled 2-1 to uphold Gagné’s decision.
“Google displays responses to a user search query ranked in the order that Google considers of most relevance to the user, as determined by algorithms maintained by Google,” wrote Justice John Laskin. “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. At a minimum, that cannot be said to be its sole purpose.”
Google still has the option of appealing the latest ruling to the Supreme Court.
The appeal court noted the question of whether there is a right to be forgotten is not part of the case.
The case involves an unnamed man who complained to the Office of the Privacy Commissioner of Canada (OPC) over Google search results for his name. He said the prominent results contain outdated and inaccurate information, and disclosed sensitive information. As a result he has allegedly suffered direct harm, including physical assault, lost employment opportunities and has experienced severe social stigma. Because the OPC has no power to make orders, it suggested the man ask Google to delete links to the articles. Google refused, suggesting the man ask the websites that created the content to delete the information.
But Google also said the OPC has no jurisdiction because PIPEDA didn’t apply to it. That is the issue the two Federal Courts had to deal with.
PIPEDA doesn’t give Canadian residents a right to be forgotten. So losing the case — assuming Google doesn’t appeal — doesn’t mean Google has to remove the links involving the complainant. The complaint would go back to the OPC to hold an investigation. Its only power under current law is to recommend Google act. But if it doesn’t, the OPC can ask the Federal Court to make an action order.
The privacy commissioner’s power would be expanded under the proposed Consumer Privacy Protection Act (CPPA) now before Parliament. However, it’s a long way from being passed and would likely have an implementation period of several months before it becomes law after being passed.
In 2018 federal privacy commissioner Daniel Therrien suggested companies create codes of practice on if and how they will meet requests that personal information publicly published be de-indexed or taken down. He also noted PIPEDA gives people the right to demand the personal data that businesses hold be accurate and complete.
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