Privacy law applies to Google results, judge says in ‘right to be forgotten’ case

OTTAWA — A federal judge says the results of Google searches are covered by the law governing how companies handle personal information, a victory for people seeking a digital “right to be forgotten.”

Privacy commissioner Daniel Therrien referred the matter to the Federal Court after a man alleged Google was breaching Canada’s privacy law by prominently displaying links about him when his name is searched.

He said the articles were inaccurate and disclosed sensitive information about his sexual orientation and a serious medical condition, causing him direct harm including assault, lost job opportunities and social stigma.

The man asked Google to remove the articles in question from the results for searches of his name, but the company declined, suggesting instead that he contact the publishers of the news items.

In her newly issued ruling, Federal Court Associate Chief Justice Jocelyne Gagné said federal privacy law applies when Google indexes web pages and presents search results in response to searches of a person’s name.

Gagné cautioned that her ruling does not determine the outcome of the complaint that sparked the reference or the power of the commissioner to recommend de-indexing — removing a link from search results.

The commissioner’s investigation of the case, as well as probes of several other complaints related to search results, were put on hold pending the outcome of the court reference.

The issue of a right to de-indexing inaccurate or out-of-date information — the right to be forgotten — will be examined once Therrien resumes investigating, said Tobi Cohen, a spokeswoman for the commissioner.

“Due to the ongoing investigation, we are not in a position to offer further comments at this time.”

Therrien had argued the federal law covering private-sector use of personal information includes a right to de-indexing, which entails removing links from search results without deleting the content itself. 

This means allowing individuals to challenge the accuracy, completeness and currency of results returned for searches on their name, the commissioner said.

Such challenges should be evaluated on a case-by-case basis, and decisions to remove links should take into account the right to freedom of expression and the public’s interest in the information remaining accessible, he added.

Google had contended the Personal Information Protection and Electronic Documents Act doesn’t apply to its search engine and that requiring the company to de-index web pages would be unconstitutional. 

Google argued the act does not apply in this case because the operation of its search engine is not a “commercial activity” under the law’s provisions.

In any event, Google added, the search service is exempt under another provision of the law because it is a journalistic or literary operation, particularly when providing internet users access to news media content and providing news media with access to readers. 

Finally, the U.S.-based company said even if the privacy law applies to its search engine and requires de-indexing of search results, that would contravene free expression guarantees in the Canadian Charter of Rights and Freedoms.

Gagné noted Google is a for-profit corporation and one of the most successful technology businesses of the modern era.

Its search engine is far and away the most dominant with some estimates suggesting it is used to conduct up to 75 per cent of all internet searches, she wrote.

Most of Google’s billions of dollars in revenue comes from advertisers, who pay the company a fee each time a user clicks on an ad in Google search results or takes an action having seen an ad, such as downloading an app, the judge said.

Even if Google provides free services to the content providers and the user of the search engine, it has “a flagrant commercial interest” in connecting these two players, she wrote.

“There is a real trade between Google and the users of its search engine. In exchange for the information displayed in the search results, the users provide a variety of personal information (their location, preferences, interests, consumption patterns, etc.). That personal information is used for profit.

“And, in order to attract the users, Google needs to feed them with the most accurate and customized information they are searching for. Therefore, unless it is forced to do so, Google has no commercial interest in de-indexing or delisting information from its search engine.”

She also rejected the notion of a journalistic exemption from the law.

The primary purpose of Google’s search engine service is to index and present search results, Gagné wrote.

“This is not a primarily journalistic purpose because although it may facilitate access to information, it contains no other defining feature of journalism, such as content control or content creation. Even though Google returns some journalism in its search results, its search results clearly extend beyond journalism.”

The judge did not address the constitutional question, saying it should be examined in the context of a complaint file.

Molly Morgan, a spokeswoman for Google Canada, said the company was reviewing the decision.

This report by The Canadian Press was first published July 12, 2021.

Jim Bronskill, The Canadian Press