Right to be Forgotten: A First Step for Canada?

The “right to be forgotten” is the right to have personal information removed from Internet searches and other directories under some circumstances. It is distinct from the right to privacy in that it involves removing information that is publicly known and not allowing third parties to continue to have easy access to the information via the Internet. It is often sought by individuals who want to avoid being perpetually stigmatized as a consequence of past incidents. Opponents object that such a right would conflict with freedom of expression and decrease the quality of Internet searches.

As of today, the right has been recognized in the European Union, but remains the subject of debate in Canada. However, a 2021 decision of the Federal Court gave the Privacy Commissioner of Canada the green light to hear a complaint seeking such relief and a recent 2023 decision of the Federal Court of Appeal upheld the trial court decision. As a result, the complaint is expected to proceed subject to the outcome of any further appeal to the Supreme Court commenced before the end of November 2023.

THE QUESTIONS

In The Privacy Commissioner of Canada v. Google, 2021 FC 723, the commissioner commenced a reference respecting the application of Personal Information Protection and Electronic Documents Act (PIPEDA) to a complaint respecting the operation of Google’s Internet search engine. The decision was recently upheld in Google v. Privacy Commissioner of Canada, 2023 FCA 200.

In its reference, the commissioner asked two questions:

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 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?

The reference is related to a 2017 complaint to the commissioner which alleges that news articles displayed by Google in its search results for his name contain outdated and inaccurate information and contain sensitive information. He claims that this has caused and continues to cause him harm, including physical assault, lost employment opportunities and social stigma. When he asked Google to remove the links in question, it declined and directed him instead to contact the owner of the websites where the articles appeared to ask them to remove the material. Instead, he filed a complaint with the commissioner.

Google responded to the complaint by arguing that: (a) PIPEDA does not apply to its search engine on the grounds that it is not a “commercial activity”; (b) its search engine is a “journalistic or literary operation” and therefore exempt from PIPEDA; and (c) any interpretation of PIPEDA that required it to delist lawful content is contrary to freedom of expression as enshrined in the Charter.

The commissioner and the Federal Court refused to consider the Charter arguments as premature. Before the court can consider whether PIPEDA infringes upon Google Charter rights, the court reasoned that PIPEDA must first be applied to Google in one way or another to as to limit a Charter right.

FIRST QUESTION

With respect to the first question, the court found that Google does, in the operation of its search engine, collect, use and disclose personal information in the course of a commercial activity. In this regard, it found that: (a) the search engine collected personal information by copying the contents from webpages, storing the information in its index and then displaying the information in response to a search inquiry; (b) advertisers pay Google a fee each time a user clicks on an ad in Google search results or takes an action having seen an ad; and (c) Google targets ads to users of its search engine based on personal information it has about them.

The court rejected arguments by Google that it is a mere intermediary who disseminates the free speech of third parties who are the ones who collect, use and disclose the information. In its submissions, Google claimed that its search engine is a free service that is analogous to a “library” that creates an index of works published by others.

In response to these arguments, the court observed that:

…[E]ven if Google provides a free service to the content providers and the users of its 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.

In the court’s view, every component of Google’s business model is a commercial activity in that each components depends on the others.

SECOND QUESTION

With respect to the second question, the court found that Google’s search engine is not operated for journalistic purposes at all, or at least it does not operate for an exclusively journalistic purpose. It is therefore not exempt from PIPEDA. In this regard, it found that unlike journalism: (a) Google doesn’t create any information; (b) Google doesn’t take steps to ensure that its search results are fair and accurate and is therefore not liable for the content; (c) Google makes information universally available rather than informing a specific community about issues of interest to it.

The court rejected arguments that the journalism exemption should include the indexing and dissemination of journalistic content. In its submissions, Google argued that giving the commissioner the power to regulate its search engine would give the commissioner the power to regulate journalism which it cannot do directly. Interesting, this argument was supported by CBC who intervened in the case and submitted that Google plays an essential role in the dissemination of journalistic content and that removing content from the Google search engine would remove the information from the public realm.

In response to these arguments, the court distinguished “dissemination” or “facilitating access” from “publication”:

I agree that Google facilitates access to information, such as news media. I also agree that facilitating access to information is often associated with “publishing” said information. This point was made by the Supreme Court in Crookes v Newton, 2011 SCC 47 at paragraph 29 [Crookes] in the context of the defamation framework, where publication is one element. However, facilitation is also just one indicator of publication. In Crookes, the Supreme Court concluded that hyperlinks were not publication for the purposes of defamation even though they did facilitate access to information (at para 29). The Court’s analysis in Crookes suggested that hyperlinks were not publication because the person who refers to content using a hyperlink does not participate in the content’s creation (at para 28), the person who hyperlinks to the content has no control over the content (at para 27), and the hyperlinks express no opinion (at para 30).

In the court’s view, the search results generated by Google’s search engine should not be considered journalism for the same reasons “hyperlinks” are not publications for the purposes of defamation. In sum, its search results cannot be considered journalism because Google does not create the content, expresses no opinion on the content and has no control over the content. The court further noted that even though Google returns some journalism in its search results, those results extend beyond news articles and journalism.

NEXT STEPS

In the absence of an appeal to the Supreme Court that overturns the result, the next step would be for the commissioner to finally consider the 2017 complaint and determine whether it should recommend that Google de-index articles related to the complainant in its search engine. Of course, any such recommendation may be subject to further appeals.