Is Google's "Free" Search Engine A Commercial Activity? The Federal Court's Answer May Have Implications For Your Business

• Published date: 16 July 2021
• Subject Matter: Privacy, Privacy Protection
• Law Firm: Lawson Lundell LLP
• Author: Mr Ryan Berger

The Federal Court was asked to decide this question on a reference¹ in the course of an investigation by the Federal Privacy Commissioner. The big issue in the investigation is whether the Commissioner has the authority to order Google to de-index, or remove links, from searches for an individual's name. This has become known as the "right to be forgotten." In this case, the complainant said the search results contain outdated, sensitive and inaccurate information about him which continues to cause him direct harm.

In the course of the investigation, Google took the position that its search engine does not collect, use or disclose personal information in the course of commercial activities when it indexes webpages and presents search results. The question of 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 without charge. In this particular case, no promoted advertisements were produced in a search using the individual's name.

Even though Google provides its search services without charging a fee, the Federal Court said:

"[Google] has a flagrant commercial interest in connecting these two players. There is a real trade between Google and the users of its search engine. In exchange for the information displayed in the search results, the users provide a variety of personal information (their location, preferences, interests, consumption patterns etc.). That personal information is used for profit."

In this case, the Federal Court also rejected Google's argument that "collection, use or disclosure" of personal information captured by PIPEDA did not apply to intermediaries, like Google. The Court found that Google collects, uses and discloses personal information in various ways. Google...