The Privacy Commissioner of Canada Explores a Right to De-Indexing
In 2016, the Office of the Privacy Commissioner of Canada (“OPC”) initiated public consultations on the topic of online reputation. Feedback showed that Canadians were “increasingly concerned about their online reputation” and their lack of control over it.
The Commissioner subsequently issued a draft position paper on online reputation, expressing its preliminary view that search engines may fall under Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA”) and that individuals may be entitled to dispute search results for their name on the basis of accuracy, completeness, and currency. Offending content may require corrective measures, and might be de-indexed, marked as inaccurate, or demoted. However, the OPC noted that expressive freedom and the public interest must be considered during the assessment process.
OPC Complaint and Federal Court Reference
In parallel to these public consultations, the Office of the Privacy Commissioner received a 2017 complaint claiming that Google violated PIPEDA by showing outdated, inaccurate, and sensitive information when individuals search for the complainant’s name and seeking de-indexing as a remedy. Google refused, arguing that it was not subject to PIPEDA when processing search queries relating to an individual’s name. Specifically, Google argues these types of search queries are not ‘commercial’ in character or, alternatively, that they fall within an exception for journalistic purposes. If PIPEDA does apply, Google argues that a deindexing order would violate the freedom of expression guaranteed under section 2(b) of the Canadian Charter of Rights and Freedoms.
The Commissioner referred the issues in dispute to the Federal Court. However, much to Google’s chagrin, the Commissioner did not raise the issue of whether PIPEDA infringed Charter-protected expression, should the OPC find that corrective measures are required.
PIPEDA applies to organizations which ‘collect, use or disclose’ personal information ‘in the course of commercial activities.’ Collection, use or disclosure for ‘journalistic, artistic or literary purposes’ are not subject to the federal privacy law. The questions put to the Court thus ask whether Google collects, uses, or discloses personal information when indexing pages and displaying results for someone’s name, and whether this is done in the course of commercial activities. Alternatively, is Google exempt by virtue of performing these functions for journalistic, artistic, or literary purposes?
Constitutional Questions
During the OPC’s consultations concerning online reputation, stakeholders voiced concerns about the effects of de-indexing on expressive freedom. In its position paper, the Commissioner notes that freedom of expression has limits under Canadian law and reasoned that the question of corrective measures (including de-indexing, demotion or accuracy labelling) comes down to a matter of balancing competing rights such as privacy and dignity, and access and expression.
The Commissioner proposed that the determination of whether or not search engines must take corrective measures may be made by considering if the information at issue is within the public interest. To assess whether information falls within the public interest, a search engine may contemplate factors such as whether it: a) relates to a public figure; b) concerns a “matter of public controversy or debate”; c) concerns the complainant’s personal life; d) relates to a “criminal offence for which the individual has been given a discharge, a pardon, or a record suspension”; or e) is about a minor.
In response to the OPC’s findings, Google asserted that—in addition to Google’s right to free expression—press freedom and public access rights were also at stake. It argued that de-indexing would fail the Oakes test, which determines whether limits on rights and freedoms are reasonable and justifiable under section 1 of the Charter.
After seeing how the Commissioner framed the scope of the Court reference, Google sought to expand the scope of the reference to include the question of expressive freedom and to adduce additional evidence on the expressive context. However, the Court largely refused, holding that parties to a reference cannot alter the scope of a question and that the responsibility of fact-gathering was primarily that of the tribunal. Still, the Court noted Google could nevertheless argue that the reference cannot be addressed at all without engaging the constitutional angle.
In its factum, Google therefore argues that the Federal Court should “dismiss the reference on the basis that the questions cannot or should not be determined based on the scope of the issues and evidentiary record before it,” as the question of PIPEDA’s application to search queries and questions of expressive freedom are “inextricably intertwined.”
If the Court agrees with Google, it may refuse to answer the reference questions, leaving it to the Commissioner to determine whether PIPEDA applies to Google search queries and whether Google must take any corrective steps regarding the search results at issue in order to meet its accuracy obligations under PIPEDA. However, the existence of a Canadian ‘right to erasure’ or ‘right to be forgotten’ will be far from settled. Google will be free to seek judicial review of the OPC’s decision, and may bring a de novo constitutional claim. Only then will the question be settled for once and for all. Subject to an appeal, of course.