Federal Court of Canada Finds the Operation of Google’s Search Engine a Commercial Activity Under PIPEDA

On July 8, 2021, the Federal Court of Canada (the Court) in Reference re Subsection 18.3(1) of the Federal Courts Act, 2021 FC 723, found that Google’s search engine service operates in the course of commercial activities within the meaning of the Personal Information Protection and Electronic Documents Act (PIPEDA), and that such service does not fall under PIPEDA’s journalistic exemption.

The Privacy Commissioner of Canada (the Commissioner) brought a reference case relating to the investigation of a complaint against Google alleging that Google’s search results of the complainant’s name display links to news articles that contain personal, inaccurate and sensitive information about the complainant which cause him direct harm. The complainant sought the removal of the harmful links from the Google search results for his name (known as the “right to be forgotten”). Google challenged the Commissioner’s jurisdiction to investigate the complaint on the basis that the activity in question is not subject to PIPEDA.

The Commissioner submitted two questions to the Court:

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 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?

The Court answered the first question in the affirmative. The Court rejected Google’s argument that it acts as an online intermediary by offering a free search engine service to connect users to third party content. The Court found that Google collects, uses and discloses personal information in operating its search engine service, and that the personal information is used for profit as Google promotes to advertisers its ability to target ads to users of its search engine based on personal information it has about them. The Court further noted that “every component of [Google’s] business model is a commercial activity as contemplated by PIPEDA”.

With regards to the second question, the Court held that Google’s search engine service does not operate for a journalistic purpose. The Court found that other than facilitating access to information, Google does not create or control the content of the search results, and makes no effort to determine the fairness or the accuracy of the search results.

The Court concluded that this decision does not determine the outcome of the complaint, which will be dealt with by the Commissioner’s proceedings.

Summary By: Anna Troshchynsky