A Step Towards The Right To Be Forgotten: A Developing Story

• Published date: 26 July 2021
• Subject Matter: Privacy, Privacy Protection
• Law Firm: Langlois lawyers, LLP
• Author: Cynthia Chassigneux, Chloé Desch'nes, Sean Griffin, Justine Brien, Marie-Laurence Goyette, Antoine Hamel Rancourt and Lana Rackovic

While several bills contemplate the introduction of a right to de-indexation/removal into applicable privacy legislation at both the federal and provincial levels, the Federal Court, in a recent reference (2021 FC 723 - July 8, 2021) regarding the application of the Personal Information Protection and Electronic Documents Act (the "PIPEDA"), appears to be opening the door to recognizing this "right to be forgotten."

In response to a complaint filed against Google, the Office of the Privacy Commissioner of Canada (the "OPC") submitted the following two questions regarding the application of the PIPEDA to this search engine:

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 1 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?

After reviewing the operation of the search engine, the Federal Court addressed the questions posed. It answered the first question in the affirmative: Google is engaged in a commercial activity within the meaning of the PIPEDA. It answered the second question in the negative: the purposes for which Google handles personal information are not journalistic.

The Federal Court clarified, however, that this decision does not determine the outcome of the complaint before the OPC, nor its power to recommend de-indexation.

It remains to be seen what action will be taken on this judgment by the OPC, which had suspended the investigation of the complaint against Google, as well as what action the search engine may wish to take.

If you have any questions on this subject, please do not hesitate to contact Cynthia Chassigneux to discuss them.

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With respect to the first question, which it answered in the affirmative, the Federal Court stated that:

[40] The sub-questions that are relevant to this first Reference question are whether a) in the operation of Google's search engine service, when it indexes webpages and presents search results in response to searches of an individual's name, Google discloses, collects or uses personal information, and b)...