The Office of the Privacy Commissioner’s Reference before the Federal Court to determine whether Google is subject to the Personal Information Protection and Electronic Documents Act has passed another procedural milestone. Once again, the OPC can claim victory.
Google and media try to expand Reference
The OPC brought the reference in 2018 to ask the Federal Court to determine whether PIPEDA applies to Google when Google indexes webpages and presents search results in response to searches of an individual’s name. In essence, the question is whether Google is engaged in a form of commercial activity (otherwise PIPEDA does not apply). Google says it is not. The Reference also asks whether Google is exempt from PIPEDA because it involves the collection, use or disclosure of personal information for journalistic, artistic or literary purposes (and no other purposes). Google says it is.
Google countered the OPC’s move by attempting to expand the scope of the Reference to consider the application of the Canadian Charter of Rights and Freedoms. In particular, Google wanted the court to consider whether the application of PIPEDA to Google search would infringe section 2(b) of the Charter – freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. Google claims that the mere application of PIPEDA to Google search would breach its right to free speech. In essence, Google claims a special zone of operation for Google search – free from the constraints of privacy laws. Google was joined by media parties who wanted to intervene to make this argument.
Federal Court twice shuts down Google and media request
On July 22, 2019, Associate Chief Justice Jocelyne Gagné released her reasons dismissing appeals that Google and certain news media had launched from orders of Prothonotary Mireille Tabib. Prothonotary Tabib had rejected the news media’s request to intervene and had dismissed Google’s attempt to broaden the reference.
In confirming Prothonotary Tabib’s orders, Justice Gagné concluded that the premise of Google’s argument regarding freedom of expression rested on the assumption that PIPEDA applied to Google search. However, that was the very question to be determined by the court. Moreover, even if PIPEDA did apply, the question of how it would apply would depend on particular facts. Justice Gagné called Google’s bluff. If Google really thought that the very hint of application of PIPEDA to Google search rendered PIPEDA unconstitutional, why, she asked, hadn’t Google just brought an application seeking a declaration of invalidity of PIPEDA?
With the expanded scope of the Reference off the table, the news media remain shut out of the Reference.