When Is It Legal To Repurpose Publicly Available Information For Commercial Purposes?

The Superior Court of Québec recently rendered a decision that, albeit limited in scope, raises important concerns with respect to the commercial use of publicly available information. The Court concluded that the Québec Enterprise Registrar (Registrar) did not have the legal authority to monitor and control the use of information found in the Registre des entreprises du Québec (Register) — a publicly constituted database — once it is lawfully obtained. Since 2016, the Registrar updated its website's terms of use to prohibit users of the Register from compiling and disseminating its contents for commercial purposes — a fact that was largely accepted and left undisturbed by the parties. Nonetheless, OpenCorporates challenged the Registrar's assertions that it could compel OpenCorporates to stop publishing data it had collected from the Register prior to the new terms of use. Although the court ultimately ruled in favour of OpenCorporates, its conclusions were limited to assessing the responsibilities of the Registrar. In so doing, it wholly ignored the privacy concerns raised by OpenCorporates' commercial re-use of publicly available personal information. By sidestepping a discussion about the privacy implications of OpenCorporates practices, the Court missed a valuable opportunity to provide clarity with respect to the use of publicly available information for commercial purposes.

Background

On September 6, 2019, the Superior Court of Québec, in Opencorporates Ltd. c Registraire des entreprises du Québec,1 issued a declaratory judgment against the Registrar stating that it did not have the authority under its constituting Act — the Act respecting the legal publicity of enterprises (ALPE)2 — to prevent the applicant from publishing and distributing the data it had lawfully collected from the Register.

The Registrar, a public officer whose functions are established under the ALPE,3 ensures that businesses constituted and/or operating in Québec are duly registered, and renders the information it collects public by publishing it in the Register.4 The applicant, OpenCorporates, is a U.K.-based publisher of one of the largest publicly available databases, and provides access to reliable data concerning corporations operating in roughly 130 jurisdictions, including Québec.5 From 2012 to 2016, OpenCorporates collectedthrough various automated data scraping processesinformation from the Register, and aggregated this information in its own database...