Privacy Commissioner heads to Federal Court for fun and determination of Google’s profits

Don’t worry, I don’t understand the headline either. But I’ll explain. There was a HUGE development in privacy / internet circles [/checks calendar] about 3 weeks ago, that will possibly have some HUGE implications for a lot of things. Am I being vague? Seems like it! OK, let’s figure this out.

So on October 10th, the Office of the Privacy Commissioner (OPC) announced that they had submitted a “reference” to the Federal Court. You see, in some circumstances, government bodies can ask a court to make a determination of law if something is unclear, this is called a reference. So what is unclear? The OPC news release describes it as:

to seek clarity on whether Google’s search engine is subject to federal privacy law when it indexes web pages and presents search results in response to queries of a person’s name

This is very important! Why? I’ll get there. First, let’s look at the exact specific questions that the OPC is asking the Court to determine:

1. Does Google in the operation of its search engine, 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 web pages and presents search results in response to searches of an individual’s name?
2. Is the operation of Google’s search engine 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?

So you might be asking what those PIPEDA provisions are. Let’s reprint the first one:

4 (1) This Part applies to every organization in respect of personal information that

(a) the organization collects, uses or discloses in the course of commercial activities

You’ll notice that bold portion there. What this is saying is that PIPEDA, the federal privacy law, only applies when a company, like Google, is collecting, using or disclosing personal information while doing commercial activities. Is searching and returning results a commercial activity? The Court will tell us! That’s the “Google’s profits” of my crappy headline, I guess. The second question above is asking that even if it may be a commercial activity, if the search functions are for “journalistic, artistic or literary purposes” PIPEDA won’t apply

SO. What this comes down to is basically the OPC wants to know if PIPEDA applies to Google search. With me so far?

Now we’ll get to why this is important. Finally! You see, the OPC received a complaint from an individual who said that Google contravenes PIPEDA when it returns results of his name being searched (those results must have been not too flattering!). But before the OPC could investigate, they wanted to know if PIPEDA actually applies or not, thus the reference. But in the broader sense, there is more importance. You may recall this shocking headline I wrote in January of this year:

Surprise! Canada has had a Right To Be Forgotten all along!

In that post, I explained how the OPC all of sudden just decided that PIPEDA includes a right to be forgotten, or in the context of search results, a “right to de-indexing”. BUT! That determination is based on the premise that PIPEDA actually applies to search engines when they are indexing web pages and returning search results. As it turns out, the OPC does not know if that’s true or not! So they have asked the Court to make that determination. With me so far?

NOW! There is actually more to it than this. Yes, if the Court determines that PIPEDA applies to Google when it indexes web pages and returns search results, the implication is that there really is a right to de-index (well, until the appeal, and the appeal of the appeal…). BUT! As Geist correctly points out, this reference will not decide whether Canada has a right to be forgotten, point finale, as is being reported in the media (like here e.g.).

It’s much broader than that, and more basic. There are numerous implications if PIPEDA applies to Google when it does search, not just the right to de-index. For example, PIPEDA has 10 principles that all companies must follow, and I am guessing that Google does not!  Google will be subject to a crapload of complaints to the OPC that are permitted under PIPEDA. Under PIPEDA, the Privacy Commissioner can audit companies if they are not complying. Google won’t like that!

THE POINT IS. We are going to be watching this case very carefully here at AM.com. It’s important. Trust me.

UPDATE (some weeks later) – the full text of the reference to the Court has shown up online. Here’s the PDF. Doesn’t really add much besides what I’ve already explained here, but i wanted to link to it for, uh, posterity I guess.