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The Right not to be Overlooked in the Right to be Forgotten

March 20, 2019

Media parties denied standing in Reference on right to be forgotten

The Prothonotary of the Federal Court dismissed an application by various media parties to be involved in a Reference case in Reference re subsection 18.3(1) of the Federal Courts Act. A complainant brought a complaint to the Privacy Commissioner alleging that Google contravened the Personal Information Protection and Electronic Documents Act [PIPEDA] by continuing to prominently display links to news articles about him in search results corresponding to his name. The complainant alleges the articles in question are outdated and inaccurate and disclose sensitive and private information, and has requested that Google “de-index” him: that is, that they remove the articles from search results using his name, a process colloquially referred to as “the right to be forgotten”. Before investigating the complaint, the Privacy Commissioner sent two Reference questions to be determined by the Federal Court, and the media parties sought to take part in those Reference proceedings. The prothonotary denied that request, but left open the possibility that the media parties could make the same application at a later point.

The central issue was, in fact, what the issue was. There was no question that the underlying complaint to the Privacy Commissioner against Google raised “important and ground-breaking issues relating to online reputation, including whether a ‘right to be forgotten’ should be recognized in Canada, and if so, how such a right can be balanced with the Charter protected rights to freedom of expression and freedom of the press” (para 7). That was not, however what the Reference was about. Rather, the Privacy Commissioner had asked only two questions:

  1. Does Google, in the operation of its search engine service, collect, use or disclose personal information in the course of commercial activities within the meaning of paragraph 4(1)(a) of PIPEDA when it indexes webpages and presents search results in response to searches of an individual’s name?
  2. Is the operation of Google’s search engine service excluded from the application of Part I of PIPEDA by virtue of paragraph 4(2)(c) of PIPEDA because it involves the collection, use or disclosure of personal information for journalistic, artistic or literary purposes and for no other purpose?

Google, as a party to the Reference, had brought an application to expand the questions to include issues relating to whether, if PIPEDA applied to the operation of its search engine and requires deindexing, it would contravene s 2(b) of the Charter. However, that application had not yet been heard at the time the media parties sought to be added (in part at their insistence).

The media parties argued that the true issue underlying the reference was the Privacy Commissioner’s proposed regulation of internet searches and whether that offends the expression and press freedoms in the Charter, and therefore that they should be added as either parties or intervenors. The Prothonotary, however, held that the question which needed to be asked at this time was whether the media parties should be parties on intervenors on the Reference questions which actually existed at the time, and that there was no basis to grant that application.

The media parties were not, for example, necessary for a full and effectual determination of all issues in the reference:

[36] …What is at issue here is only whether Google is subject to or exempt from the application of Part 1 of PIPEDA in respect of how it collects, uses or discloses personal information in the operation of its search engine service when it presents search results in response to an individual’s name. 

[37] The only direct result or effect of the answer to the questions raised in this reference will be to determine whether the OPC may proceed to investigate the complaint made against Google. The media parties are neither intended nor required to be bound by that result. The questions, as framed in the reference, can be effectually and completely settled without the presence of the media parties.

Even if the scope of the Reference were expanded to include Google’s Charter question, the Prothonotary noted, she would be hesitant to conclude that the media parties were necessary:

[39] The Court accepts, for the purpose of this argument, that deindexing may significantly affect the ability of content providers to reach their intended audience and for the public to access media content. Even as argued by the media parties, however, that is only the practical effect of the implementation of a recommendation to deindex. If deindexing is recommended or required, its implementation does not require that any action be compelled from or prohibited against the media parties, any other content provider, or any user of the search engine. The only action required would be by Google. Deindexing could and would produce its effect without the need for the other persons “affected” by it to be “bound” by the result of the proposed expanded reference. 

[40] The impact of a potential deindexing requirement may be significant, but it does not affect the media parties any more directly than it would affect other content providers or those who use Google’s search engine service to gain access to content. To hold that the media parties are, by reason of the practical effect of a decision, necessary to the full and effectual determination of all issues would require that all others that are equally affected also be recognized as necessary parties and be made parties to the reference. 

Similarly the media parties were not found to have shown that they would add anything of value if they were allowed to be intervenors in the Reference:

[47]  It seems to the Court that the media parties have not given much thought to what they would have to contribute to the determination of the reference if it were limited to the questions as currently framed in the Notice of Application. Indeed, given that the issues currently framed in the reference focus on whether Google’s operation of its search engine is a commercial activity and the purpose for which Google collects, uses or discloses personal information, it is not clear what evidence the media parties might be able to contribute that might assist the Court’s determination. Asked at the hearing to state the position they might take in respect of each of the questions as framed in the reference, counsel for the media parties candidly admitted that they could not provide an answer, having not even seen the evidentiary record constituted by the Privacy Commissioner for the purpose of the reference.

The Prothonotary did allow, however, that the media parties could apply for intervenor status again once Google’s application to expand the Reference had been decided, so long as “the proposed intervener’s contribution is well-defined and the Court is satisfied that this contribution is relevant, important and in the interest of justice” (para 50).

[Editor’s note: one of the authors of this newsletter was counsel to one of the parties in this case, but was not involved in writing up this summary.]

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