Oh, hai! Remember me? I used to write about very important internet law developments on the internet. I still do it on occasion, but now I do it (/checks date) 5 months after they happen apparently. I also promised myself I would write at least 3 posts in 2021. It’s a low bar. I am running out of time. Let’s get to it!
(/checks dates again) More than 3 years ago, a case started. We finally (5 months ago) have a judgment in the case! So my delay in writing about the decision is a mere drop in the bucket of time. Back when I wrote regularly like a normal blogger, I wrote the following headline about the case: Privacy Commissioner heads to Federal Court for fun and determination of Google’s profits. I wrote in that post “I don’t understand the headline either” and I guess I still don’t. Huh.
ANYWAY. What was the case about? Let me quote myself from that piece 3 years ago, because I am not so much a late blogger but a lazy late blogger:
Hmmm, upon further review, I really would need to quote like the whole thing I wrote. So just go back and read it. Or not. It comes down to this – the Officer of the Privacy Commissioner (OPC) asked two questions of the Federal Court, in what we lawyers call a “reference”. A reference means there are not two parties (or more) fighting against each other like a “normal” court case, but just one party (usually some government body) who asks the Court to answer some legal questions. So here are the questions asked:
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?
Now those seem like very stupid technical questions. But they have huge implications. Look at this headline – “Federal Court decision a step towards determining whether Canada will have a right to be forgotten”. That’s important! The Right to Be Forgotten (RTBF) is so important I have written 9 posts about it. Wow I used to be a proficient blogger! Let the Court explain a little background:
In January 2018, the [Privacy] Commissioner published a Draft Position Paper on Online Reputation expressing the view that, in certain circumstances, PIPEDA applies to search engines like Google. A consequence of PIPEDA’s application would be that Google might be required to remove links to content containing personal information.
Also some dude (or woman I guess, the “Complainant” seems quite anonymous though the Court calls them “he”) in 2017 had made a complaint to the Office of the Privacy Commissioner (OPC) about Google, saying they wanted some links about them removed. The OPC told Google, and Google told the OPC to fuck off. Well more precisely Google said that their search functions were not “commercial” so PIPEDA did not apply. And maybe even if it did apply, Google should be exempt because those search results were for “journalistic, artistic or literary purposes and for no other purpose”, like you see in the second question. So between Google’s reply to the complaint and the OPC’s Position Paper, we get to the 2 questions the Court has been asked to answer. And 3 years later finally answered!
Spoiler alert – Google is a loser. Also, Google had claimed that if they had to delist public information, that would violate their freedom of expression under the Charter. The OPC chose not to refer that question to the Court. Let’s go to the decision on the 2 questions we have.
The Court gives us a little background as to how search engines work. Fun! There is only one important fact you need to retain however – “Google generates revenue when users click on advertisements displayed in a search result”. Let’s answer the questions!
The Court divides the question into two sub-questions. Jebus just answer the fucking thing! Anyway:
whether a) in the operation of Google’s search engine service, when it indexes webpages and presents search results in response to searches of an individual’s name, Google discloses, collects or uses personal information, and b) whether it does so in the course of commercial activities.
Everyone sort of admits that the links and the stuff they link to can be and are personal information under PIPEDA. The Court notes that Google always says “collect, use, and disclose” like you have to have all 3. But the Court says PIPEDA uses “or” not “and”. The Court is right! And duh, when Google web crawlers cruise around the internet, they are clearly “collecting” the personal information they find on those web pages they are indexing. And duh, they are obviously “using” the personal info as well, they use as much of it as possible to make the search results all goodly and useful! QED, Google.
Start with this fun fact – “Google’s parent company reported that it earned approximately $63.5 billion (USD) from Google in the first half of 2018 alone”. If that ain’t commercial, the Court doesn’t know what is. And as the Court notes – “Google promotes its advertising business by highlighting the popularity of its search engine”. The ad services and the search services are inextricably linked, unlike what Google is trying to argue which is that they are two separate things. The Court further notes that “personal information is used for profit”, even if doing a search is free. PIPEDA was drafted with this in mind even!
Fuck and Yes on Q1.
Google swears when people do searches they are doing journalism! Especially if they are just searching someone’s name. They want to find out about them! Even the CBC agrees with them on this question! (which they do, the CBC made representations to the Court and does not want the OPC sticking its nose in the journalism business and deciding what should be published)
The Court laughs at this crap. The Court notes – “ordinary understanding of the word journalism encompasses content creation and content control.” Journalism informs the community about values, produces something, and does some sort of control to “provide an accurate and fair description of facts, opinion and debate.” And the Court is kind enough to point out to Google what they do, and that ain’t it:
first, Google makes information universally accessible, which is much broader than informing a community about issues the community values; second, Google does not create or produce anything – it only displays search results; and third, there is no effort on the part of Google to determine the fairness or the accuracy of the search results
You got that right. Google search results are often full of crap! The Court also points out the wording of the section 4(2)(b) exception includes the words and for no other purpose. So even if there is “some” journalism, there are other purposes too.
Fuck and No on Q2, and we’re done! Hey that was easy. I should blog more often.
Superterriffic Happy Hour Analysis
I will quote from the Court’s conclusion after it gave its yes and no answers, as it is certainly relevant to some analysis:
However, this does not determine the outcome of the Complainant’s complaint, the power of the Commissioner to recommend deindexing, the constitutionality of PIPEDA, or any other non-reference question that is better left to the Commissioner’s proceedings.
So before there would be an actual RTBF here in Canada, we would have to survive both COVID-19 and the following things happening:
- Google’s inevitable appeal of this decision
- The OPC saying they have the power to order de-indexing
- A court determining the “power of the Commissioner to recommend deindexing”
- Someone’s appeal of that decision
- A court determining the “constitutionality of PIPEDA”
- Someone appealing that decision
That’s like 7 years minimum. Oh and BTW, this past week the Prime Minister’s Mandate Letter to the Minister of Innovation, Science and Industry (HEY! waiting 5 months to write this post paid off!!!) asks the Minister to “Introduce legislation to advance the Digital Charter” meaning a re-introduction of some form of the last Parliament’s Bill C-11, which eliminated PIPEDA. So this whole process and this decision are possibly moot. Hmmm. Maybe this court decision isn’t a very important development after all.