Federal Court Of Appeal Finds Google Search Engine Subject To Canada’s Federal Privacy Law

On September 29, 2023, the Federal Court of Appeal (the FCA) issued its decision in Google LLC v Canada (Privacy Commissioner), 2023 FCA 200, dismissing Google LLC’s (Google's) appeal and finding that Google’s search engine is subject to the Personal Information Protection and Electronic Documents Act (PIPEDA), as it does not fall under PIPEDA’s journalistic purposes exemption.

As previously reported by the E-TIPS® Newsletter here, the Privacy Commissioner of Canada (the Privacy Commissioner) brought the following reference questions before the Federal Court, which resulted in the reference judge answering the first question in the affirmative and the second in the negative.

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 web pages 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?

On appeal, Google argued that the reference judge erred in its treatment of Charter issues when considering the matter, including that the reference judge: (i) failed to consider Google’s argument that the reference questions should not be answered, and the reference should be dismissed, unless the court decided on certain Charter issues; (ii) incorrectly assumed that the Privacy Commissioner has jurisdiction to consider the Charter; and (iii) erred in law by proceeding to answer the reference questions without considering the Charter. The FCA rejected each of Google’s arguments as it concluded that the reference judge made none of the asserted errors.

Additionally, Google submitted that the reference judge too narrowly interpreted the exemption in paragraph 4(2)(c) of PIPEDA and erred in holding that only a publisher of news can act with a journalistic purpose, when the principles of statutory interpretation support a broad meaning of the term that includes dissemination of news.

After rejecting Google’s submissions regarding principles of statutory interpretation, the FCA found that regardless of the test adopted in considering what constitutes a journalistic purpose, “Google Search does not collect, use, or disclose personal information for a journalistic purpose and, even if it does, it does not do so solely for that purpose.” The FCA noted that the purpose of Google Search is to display responses to a user search query ranked in the order that Google considers of most relevance to the user, as determined by algorithms, and that in that process, “Google is agnostic as to the nature of that content: nothing turns on whether or not it is journalistic.” This led the FCA to find no error in the reference judge’s conclusion on the application of paragraph 4(2)(c) of PIPEDA, and ultimately dismiss Google’s appeal in a 2-1 majority.

In response, on October 3, 2023, the Privacy Commissioner of Canada issued a statement welcoming the FCA decision.

Summary By: Steffi Tran