In 2018, the Office of the Privacy Commissioner of Canada ("OPC") began a reference to the Federal Court under subsection 18.3(1) of the Federal Courts Act (the "Reference") in the context of an OPC investigation into a complaint made by an individual against Google. The complainant alleges that Google is contravening the Personal Information Protection and Electronic Documents Act ("PIPEDA") by continuing to display links to news articles concerning the complainant when his name is searched using Google's search engine. He requested that Google remove the articles from search results using his name (otherwise known as de-indexing).
In the Reference, the OPC referred two questions of jurisdiction that arise from the complaint to the Federal Court. The two questions are:
- 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?
- 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?
Concerns about a 'right to be forgotten', and its implications, led the Canadian Broadcasting Corporation and a group of Canadian media organizations to seek to be added as parties to the Reference (or, in the alternative, to be granted intervenor status). It also prompted Google to bring a preliminary motion to add a constitutional question (concerning freedom of expression) to the Reference, or otherwise to strike out the Reference.
In recent months, the Federal Court has released reasons on both of these motions – dismissing them both.
Media Coalition Motion
In Reference re subsection 18.3(1) of the Federal Courts Act, 2019 FC 261, decided on March 1, 2019,the Federal Court dismissed the media coalition's motion to be added as a party to the reference or to become an intervenor.
The media coalition argued that the OPC's reference question is merely a threshold issue to the implementation of "the right to be forgotten", and that the content they provide will inevitably be de-indexed if the OPC's regulation of search engines is found to be lawful. In particular, they argued that the news stories that triggered the complaint were published by their members, and that the de-indexing would affect them directly. They also submitted that their right to freedom of expression under section 2(b) Charter were directly engaged, and would be breached if de-indexing were ordered.
The Federal Court started its analysis of the issues raised by the media coalition by determining "what is truly at issue in the underlying proceeding". It disagreed with the media parties that the issue was whether the OPC's proposed regulation of internet searches offends the right to freedom of expression enshrined in the Charter. According to the Federal Court, this formulation "ignores the reference questions as expressly formulated" and transforms the jurisdictional issues as framed in the Reference "into the final, ultimate determination of all matters". The Federal Court held that instead, "what is truly at issue in this application is whether Part 1 of PIPEDA applies to Google in respect of its collection, use or disclosure of personal information in the operation its search engine service".
The Federal Court recognized that this issue would require consideration of the Charter. However, the Court distinguished between "using the Charter as an aid to statutory interpretation and using it to challenge the applicability or validity of the statute". The Court determined that the Reference questions framed contemplate the consideration of the Charter in interpreting sections 4(1)(a) and 4(2)(c) of PIPEDA, but do not include the determination of whether their application would contravene the Charter. Accordingly, the Court accepted the OPC's proposed issues on the applicability of PIPEDA to search engines as the true issues for future proceedings.
Based on this narrow framing of the question, the media coalition was not a proper or necessary party. No complaint was made against the media parties in the underlying complaint, and there was no statutory or regulatory authority to add the media coalition as a party.
The court also explained that for the media coalition to be considered necessary to the Reference, it had to prove that it was bound by the result of the action, and that the question to be settled could not be "effectually and completely settled" without them as a party.3 However, in this case, the practical effect of de-indexing would only require Google to take action; therefore, while members of the media coalition would be "affected", no members of the media coalition would be "bound" by the result.
In the alternative, the media coalition sought intervenor status to be able to participate in the Reference. The court held that the coalition's argument on this issue relied in large part on the same Charter assumption as to what was truly at issue in the Reference. Accordingly, the court held that the media coalition's motion for leave to intervene was premature. Further the media coalition had not explained the nature of the evidence and arguments they intended to put forth as intervenors. This was fatal to their motion.
While the Court denied the media coalition's motion to be added as a party or to be granted intervenor status, the court allowed the coalition to reapply for intervenor status in the future.
Constitutional Question Motion
On a separate motion, Google sought relief that would have had the effect of recognizing the inclusion of constitutional issues relating to freedom of expression under section 2(b) of the Charter in the issues to be decided on the Reference or, alternatively, striking out the Reference. In reasons dated April 16, 2019, in Reference re subsection 18.3(1) of the Federal Courts Act, 2019 FC 464, the Federal Court dismissed this motion.
First, the Federal Court held that the scope of a reference cannot be varied. The plain reading of section 18.3 of the Federal Courts Act (which, as noted, permits reference), precludes a party to a reference from adding to or modifying the scope of the questions that the tribunal has chosen to refer to the Federal Court. According to the Federal Court, Google did not have an absolute right to demand and obtain the resolution of a constitutional issue "at any time and any stage of a judicial or administrative process". Simply put: "There are no mechanisms by which the Court or a party to a reference might intervene to approve, rephrase or expand the scope of the reference questions."
The sole remedy available would be to strike the Reference – which can only be done where it is plain and obvious that it is irregular or without merit. In this case, the Federal Court decided against striking out the Reference. For reasons similar to those given on the media coalition's motion, the Federal Court did not accept Google's submissions (1) that deciding the reference without addressing the constitutional issues would be untenable because it would fail to put an end to the substantive dispute as to whether using PIPEDA to censor Internet search engines is constitutional, and would result in litigation by instalment; and (2) that this would result in an abuse of process that would unduly undermine Google's substantive rights.
First, the Federal Court held that Google's rights would not be affected as it was "not at all plain that the resolution of the questions as phrased presupposes or determines the constitutional validity of the eventual or hypothetical application of PIPEDA to Internet search engines." If the Reference result is that PIPEDA does not apply, then the issue of its constitutional validity does not arise. And even if the result were otherwise, Google would still have rights available to it through the de novo review process, at which time Google could raise the constitutional issues.
With respect to the arguments about bifurcating the proceeding, and litigation by installment, the Federal Court held that this argument rested "on the incorrect assumption that the answer to the reference cannot put an end to the dispute and on speculation as to the outcome of an eventual investigation". Further, the Court held that the Reference by its very nature gives rise to a bifurcation of the proceedings commenced by the complaint, and that this bifurcation was therefore acceptable.
While it is still too early to determine the impact of these two decisions, they do suggest that the Federal Court may take a narrow approach to the Reference – and forego the opportunity to address a Canadian "right to be forgotten" – leaving that to another day or another proceeding. While this may be beneficial to parties like Google and the media coalition, insofar as there is no determination of this issue in a way that would have broader implications, this Reference is likely to create uncertainty about the "right to be forgotten" and its status in Canada.
Given the OPC's indication that its position is that there exists a right to request de-indexing,4 this issue will need to come to a head in the near future. The discussion about whether there is such a right, and what its scope should be, warrants full debate, with input from all groups with an interest at stake. The Federal Court has now decided the Reference is not the place for this debate. The question remains – what is the right forum?
For now, the issue to watch will be whether the operation of a
search engine service to index webpages and present search results
in response to searches of an individual's name constitutions
the collection, use or disclosure of information under PIPEDA. This
issue too could have broad implications, as it relates to the
characterization of search engine services, and other online
services, and whether those services are commercial activities that
are subject to PIPEDA. Google's desire to address the
constitutional issue may be unnecessary should this issue be
determined in its favour.
The authors thank Noah Walters, a summer student in our Toronto office, who contributed to this article.
2 See (among other things) the decision of the Court of Justice of the European Union in Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González, Case C-131/12, ECLI:EU:C:2014:317.
3 Stevens v Canada (Commissioner, Commission of Inquiry)  4 FC 125.
4 See the OPC's Draft Position on Online Reputation, https://www.priv.gc.ca/en/about-the-opc/what-we-do/consultations/consultation-on-online-reputation/pos_or_201801/, stating: "the OPC is of the view that PIPEDA applies to a search engine's indexing of online content and display of search results. As such, search engines must meet their obligations under the Act." This would include "allowing individuals to challenge the accuracy, completeness and currency (the extent to which the information is up-to-date) of results returned for searches on their name."
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