Canadian Court issues Judgement on Google Search Results
While the Canadian courts have grappled with the question of forcing Google to block the display of specific search results in certain circumstances, there has been little sense that Canada would establish such a ‘right to be forgotten’. The European Union certainly shook up the privacy world in 2014 with the establishment of such a right, creating a process that allows people to seek the removal of search results from Google that are “inadequate, irrelevant or no longer relevant.” This process does not result in the removal of the actual content, but rather makes such content more difficult to find in light of the heavy reliance on search engines to locate information on-line.
However, the Federal Court of Canada recently issued a landmark ruling that paves the way for a Canadian version of the right to be forgotten. The case, A.T. v. Globe24h.com, 2017 FC 114 (CanLII), involved a Romanian-based website that downloaded thousands of Canadian judicial and tribunal decisions, including the names of plaintiffs and defendants as well as the personal information of others named in these decisions; posted them on-line; and demanded fees for their quick removal. The decisions are all public documents and available through the Canadian Legal Information Institute (CanLII), a website maintained by the legal profession in support of open access to legal materials. However, since most decisions on CanLII are not indexed in Google, their availability is not widely known and their content does not typically come up in search queries.
Globe24h.com opened its database to Google leading to the discovery of, and easy access to, such decisions for the first time. When users contacted the site, they were told that a “free” removal service could take six months or more. If they paid for the removal, the content was quickly deleted without issue.
The Office of the Privacy Commissioner of Canada (OPCC) received dozens of complaints about the website and issued an investigation report in June 2015 finding that Globe24h.com had violated Canadian privacy law. The case was appealed to the Federal Court, who agreed with the Privacy Commissioner’s privacy findings, but was left with the question of what could be done. The court first ruled that it was entitled to assert jurisdiction over the foreign website, noting that the courts have applied Canadian privacy law to foreign organizations for many years. Given the connections to Canada, it ruled that it met the “real and substantial connection” standard required under the law.
Jurisdictional Reach of Canadian Privacy Laws
Yet even if Canadian law could be applied to the site, enforcing the ruling posed a more difficult challenge. The court concluded that it could issue an order both requiring the site to comply with the law and declaring that it was currently violating it. The court noted that the declaration could be used to submit a request to Google seeking the removal of the offending links from its search database. While acknowledging that there was no guarantee that Google would act, the court was persuaded by the OPCC that “this may be the most practical and effective way of mitigating the harm caused to individuals since the respondent is located in Romania with no known assets.”
In doing so, the court may have created the equivalent of a Canadian right to be forgotten and opened up an important debate on the jurisdictional reach of privacy law. While more onerous than a direct request to Google, the court’s approach suggests there is now a road map for the global removal of search results of content that may be factually correct, but which also implicates the privacy rights of individuals.
PIPEDA Damage Awards
The case also provides a useful discussion on damages, reminding us that damage awards under PIPEDA serve three main functions: (1) compensation; (2) deterrence of future breaches; and (3) vindication. The Court also reflected back on Nammo v TransUnion of Canada Inc, 2010 FC 1284 (CanLII), where the Court proposed a non-exhaustive list of factors to determine whether an application for damages under PIPEDA should succeed, namely: (1) whether awarding damages would further the general objects of PIPEDA and uphold the values it embodies; (2) whether damages should be awarded to deter future breaches; and (3) the seriousness of the breach. The Court went on to agree with the OPCC that Globe24h.com’s breach was egregious because the respondent had essentially made a business of exploiting the privacy of individuals for profit. In fact, in at least one case, removal of information which is subject to a publication ban in Canada was refused without payment.
Although the damages awarded in this case against Globe24h.com were not high ($5000), and costs that Globe24h.com was forced to pay were also modest ($300), the case provides a good precedent on the appropriate use of publicly available information, and on the court’s considerations when awarding damages. Globe24h.com was ordered to remove all Canadian court and tribunal decisions containing personal information, and take the necessary steps to remove these decisions from search engines caches as well.
For further information about this case, or to discuss whether your organization’s use of publicly available information is appropriate, contact PRIVATECH.