English,  Litigation

Google Indexing Of Personal Information Is Subject to PIPEDA (2021 FC 723)

Ever since Equustek, Google fails to convince Canadian courts of its “non-commercial” business model and its “freedom of expression” rights under the Canadian Charter of Rights and Freedoms. Unlike the USA where Google always wins (remember Oracle and fair use not so long ago), Canada maintains a tough stance on the search engine giant.

Just out of Federal Court, it was held In the Matter of a Reference pursuant to subsection 18.3(1) of the Federal Courts Act, R.S.C. 1985, c. f-7 of questions or issues of law and jurisdiction concerning the Personal Information Protection and Electronic Documents act, s.c. 2000, c. 5 that have arisen in the course of an investigation into a complaint before the Privacy Commissioner of Canada:

  • When Google indexes webpages and presents search results in response to searches of an individual’s name in the operation of its search engine service,
    • (a) Google collects, uses or discloses personal information and it does so
    • (b) in the course of commercial activities within the meaning of paragraph 4(1)(a) of PIPEDA.
  • The operation of Google’s search engine service is not excluded from the application of Part 1 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.

[38] The issue raised by this Reference is one of statutory interpretation. The modern approach to statutory interpretation is well established in Supreme Court jurisprudence (see Canada Trustco)

[39] PIPEDA is quasi-constitutional legislation because its focus is on ensuring that individuals can control their personal information, which is intimately connected to their individual autonomy, dignity and privacy (Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401, 2013 SCC 62 at para 19 [United Food]). However, this does not change the exercise of statutory interpretation to be undertaken by the Court (Lavigne at para 25).

[56] Google’s business model was foreseen when Parliament enacted PIPEDA. The Government of Canada’s consultation paper that preceded PIPEDA noted that, “[t]he challenge of the electronic age is that with each transaction we leave a data trail that can be compiled to provide a detailed record of our personal history and preferences” In this new environment, personal information itself becomes a commodity, to be mined and used for profit.

[57] That is to say that even if Google provides free services to the content providers and the user of the search engine, it has a flagrant commercial interest in connecting these two players. There is a real trade between Google and the users of its search engine. In exchange for the information displayed in the search results, the users provide a variety of personal information (their location, preferences, interests, consumption patterns etc.). That personal information is used for profit.

[58] And, in order to attract the users, Google needs to feed them with the most accurate and customized information they are searching for.

[59] Therefore, unless it is forced to do so, Google has no commercial interest in de-indexing or de-listing information from its search engine. In my view, every component of that business model is a commercial activity as contemplated by PIPEDA. To have a microscopic look at the free aspect (i.e. no payment in money made) of the search for the user, or to the free aspect of the “library service” provided to news media would be, in my respectful view, a misunderstanding of Google’s business model. All these activities are intertwined, they depend on one another, and they are all necessary components of that business model.