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October 10, 2018

Privacy Commissioner seeks Federal Court determination on key issue for Canadians’ online reputation

The Office of the Privacy Commissioner of Canada (OPC) is turning to the Federal Court 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.

The OPC has asked the court to consider the issue in the context of a complaint involving an individual who alleges Google is contravening the Personal Information Protection and Electronic Documents Act (PIPEDA) by prominently displaying links to online news articles about him when his name is searched.

The complainant alleges the articles are outdated, inaccurate and disclose sensitive information about his sexual orientation and a serious medical condition. By prominently linking the articles to his name, he argues Google has caused him direct harm.

Google asserts that PIPEDA does not apply in this context and that, if it does apply and requires the articles to be de-indexed, it would be unconstitutional.

Following public consultations, the OPC took the view that PIPEDA provides for a right to de-indexing – which removes links from search results without deleting the content itself – on request in certain cases. This would generally refer to web pages that contain inaccurate, incomplete or outdated information.

However, there is some uncertainty in the interpretation of the law.

In the circumstances, the most prudent approach is to ask the Federal Court to clarify the law before the OPC investigates other complaints into issues over which the office may not have jurisdiction if the court were to disagree with the OPC’s interpretation of the legislation.

A Notice of Application, filed today in Federal Court, seeks a determination on the preliminary issue of whether PIPEDA applies to the operation of Google’s search engine. In particular, the reference asks whether Google’s search engine service collects, uses or discloses personal information in the course of commercial activities and is therefore subject to PIPEDA. It also asks whether Google is exempt from PIPEDA because its purposes are exclusively journalistic or literary.

While Google has also raised the issue of whether a requirement to de-index under PIPEDA would be compliant with s. 2(b) of the Charter, the OPC has decided not to refer this issue to the Court at this stage. The Charter issue may not need to be addressed depending on how the reference questions are answered. The Charter issue is also highly fact based and would require an assessment of the facts of the complaint, making it inappropriate for a reference.

Investigations into complaints related to de-indexing requests will be stayed pending the results of the reference. The Privacy Commissioner’s office will also wait until this process is complete before finalizing its position on online reputation.

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Draft OPC Position on Online Reputation

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