Canada: Is Google’s “free” search engine a commercial activity? The Federal Court’s response could impact your business
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The Federal Court was asked to decide this question on a reference1 as part of an investigation by the Federal Privacy Commissioner. The big question in the inquiry is whether the commissioner has the power to order Google to de-index or remove links from searches for an individual’s name. This is called the “right to be forgotten”. In this case, the complainant said that the search results contained outdated, sensitive and inaccurate information about him, which continues to cause direct harm to him.
During the investigation, Google maintained that its search engine does not collect, use or disclose personal information in the course of commercial activities when it indexes web pages and presents search results. Whether the activity is commercial is important because the Personal Information Protection and Electronic Documents Act(PIPEDA) only applies to commercial activities.
Google urged the Court to focus on its free service. Google connects content providers and individual users of the search engine free of charge. In this particular case, no promoted advertisement was produced in a search using the individual’s name.
Even though Google provides its search services free of charge, the Federal Court said:
“[Google] has a clear business interest in bringing these two players together. There is a real exchange between Google and the users of its search engine. In exchange for information displayed in search results, users provide a variety of personal information (their location, preferences, interests, spending habits, etc.). This personal information is used for profit-making purposes.”
In this case, the Federal Court also rejected Google’s argument that the “collection, use or disclosure” of personal information collected by PIPEDA did not apply to intermediaries, such as Google. The Court found that Google collects, uses and discloses personal information in various ways. Google crawls and indexes web pages that contain personal information. It uses and discloses information contained in search results. Google’s success is largely based on the success of its search engine. Google collects information about its users and promotes to advertisers its ability to target ads to users of its search engine based on their personal information.
The Federal Court’s decision means that the Federal Privacy Commissioner has jurisdiction to continue his investigation and
PIPEDA applies to Google search results. We expect the commissioner to proceed, if other legal issues arise, including a charter contesting a final decision of the commissioner. Therefore, the question of whether Canadians have the “right to be forgotten” under PIPEDA hasn’t been decided yet (although we expect the answer to be “yes”).
In the meantime, this case has given us some insight into the application of privacy laws to “free” activities on the Web. It is clearer than PIPEDA will apply to many other services that are provided free of charge to users. Even if there is a “free” aspect of a service, when closely tied to other activities that are commercial, including those that collect or use personal information as a business model, it may be governed by PIPEDA.2
1. 2021 FC 723
2. Note that other privacy laws may apply, depending on the nature of the information and where it is collected, used or disclosed.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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