Google’s search engine is covered by federal privacy law, a court has ruled, opening the door for people to demand to have their names made unsearchable – commonly known as a “right to be forgotten.”
In a 2-1 ruling, the Federal Court of Appeal said Google, which is responsible for as much as 75 per cent of internet searches in Canada, is not covered by an exemption in the federal law for journalistic or artistic work.
“Google Search does not collect, use, or disclose personal information for a journalistic purpose and, even if it does, it does not do so solely for that purpose,” Justice John Laskin wrote for the majority.
The case began with a complaint to the federal Privacy Commissioner in 2017 from a man whose name and details are kept confidential in the ruling. The man said outdated and inaccurate information about him in newspaper articles found on the internet was leading to great personal harm, including physical assault, employment discrimination, severe social stigma and persistent fear.
He wanted the information to be delisted – made unsearchable, unless someone knew the website urls featuring his name. Ultimately, the Privacy Commissioner asked the Federal Court to rule on its jurisdiction to address the complaint under the Personal Information Protection and Electronic Documents Act.
Google argued that it acted as an intermediary between publishers and their audience, much as libraries or convenience stores do. It said that to exclude intermediaries would make the exemption for journalism ineffective. And media organizations, including The Globe and Mail, the CBC, CTV, Torstar, the Postmedia Network, Rogers Media Inc. and La Presse Inc., intervened to argue that Google plays an important role in disseminating news.
Justice Wyman Webb, who dissented in the ruling, agreed that Google is no different than a convenience store operator who sells newspapers, or a broadcaster who uses newspapers as a source of information.
“Google’s stated mission,” he wrote, “is ‘to organize the world’s information and make it universally accessible.’ Google’s purpose in collecting the information found in the newspaper articles is to index this information so that it can be easily found by an individual using the Google search engine. Its only purpose in collecting the information is to make it more accessible.”
Lawyers for the complainant praised the court’s ruling.
“I think it’s a vindication of privacy regulations,” said Mark Phillips, co-counsel with Michael Fenrick. “Canada’s federal private-sector privacy legislation was put in place to protect individuals against new types of technological privacy threats of exactly the kind we’re seeing here.”
Valerie Lawton, a spokeswoman for the Office of the Privacy Commissioner, said it is pleased the court agreed with its position that Google’s search engine service is subject to federal privacy law. “This brings welcome clarification to this area of the law.”
The case appears likely to be headed for the Supreme Court of Canada. A lawyer representing the media coalition said late Friday afternoon he was not yet authorized to comment, as did a lawyer for Google.
The ruling authorizes the Privacy Commissioner to review the complaint to determine whether it should recommend to Google that the complainant’s name be delisted from the search engine.
Two years ago, a Federal Court judge ruled on a definition of journalism developed by the Canadian Association of Journalists in ruling that Google’s search engine is not used solely for a journalistic purpose. The definition included informing the community on issues the community values, an element of original production, and discipline intended to provide accuracy and fairness.
In Friday’s ruling, Justice Laskin wrote that while other definitions are possible, what matters is what Google does: “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. 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.”
He also said the questions before the court were more limited than the right to be forgotten. The constitutional protection of freedom of speech did not figure into the court’s analysis. Justice Laskin said “Charter values” are in play only where a statute has more than one plausible meaning.
Mr. Fenrick, the complainant’s co-counsel, said laws exist in Europe and in Quebec to allow people to press for their names to be delisted, and require privacy and autonomy to be balanced against the public’s right to know.
“We’re not arguing and no one has argued in any jurisdiction that people should have an automatic right to this,” he said. “It’s always been interpreted as a case-by-case balancing between the public’s right to know and privacy.”