So, there was some long-awaited movement in the case about the so-called right to be forgotten this past week.
The Federal Court finally released its judgment and I think it’s fair to say it was a pretty big loss for Google and we got some additional clarity from the court on what constitutes a commercial activity and what is not considered a journalistic activity.
Google tried to argue that when people conduct free online searches using their search engine, the resulting display of webpage links does not amount to a commercial activity. Remember that for PIPEDA to apply, there must be a commercial activity (because the federal government is limited to regulating privacy matters as part of its constitutional power to regulate trade and commerce). I guess it was an idea worth exploring, but the judge didn’t buy it one bit.
During our recent IAPP CIPP/C training classes, we had discussions about this case, and I think the vast majority of privacy professionals would probably agree with the judge. After all, Google has relied on the money it generates from displaying search results for well over two decades. I think they were taking a long shot in trying to argue that PIPEDA does not apply to them.
Another important issue was with respect to whether Google could avail itself of the journalistic exemption in PIPEDA. Again, the judge didn’t buy this argument either. Along the way, however, they articulated (or more like reiterated) a test or series of questions we can all ask ourselves before deciding if that particular exemption is applicable. There’s some pretty helpful guidance in there.
So what’s next for this case? Assuming Google doesn’t appeal, the privacy commissioner’s investigation can continue. And if that’s the case, let’s hope it doesn’t take too long. I am also curious to see if Google will end up implementing the commissioner’s recommendations in this matter. This latest round of Federal Court litigation might only be the beginning if they don’t implement the recommendations, thus forcing another court application.
What I find interesting is that no adjudicator ruled on Google’s strongest argument — that it has a Charter right to free speech. Will an individual’s right to withdraw their consent from the listing of weblinks be able to trump the internet giant’s freedom of speech? With some unanswered questions and given what I imagine are rather significant implications of a right to be forgotten (aka deindexing) on the company, I wouldn’t be surprised if we see more litigation.
There’s clearly lots to chew on with this saga.
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