The Office of the Privacy Commissioner of Canada (OPC) has announced that it is asking the Federal Court to determine whether Google is subject to PIPEDA when it indexes web pages and displays search results in response to searches of a person's name. The OPC's Notice of Application, filed yesterday, follows a complaint brought by an individual who alleges that Google is contravening PIPEDA by continuing to prominently display links to online news articles concerning him in search results for his name. The individual alleges that the articles are outdated, inaccurate, and disclose sensitive personal information. Google asserts that PIPEDA does not apply in this context and that, if it does and requires the articles to be de-indexed, it would be unconstitutional. The OPC's application for reference under s 18(3) of the Federal Courts Act seeks a determination on two questions:
- Does Google in the operation of its search engine, 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?
- Is the operation of Google's search engine 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?
The OPC has announced that investigations into complaints related to de-indexing requests will be stayed pending the results of the reference and that it will wait for the court's determination before finalizing its draft position on online reputation, in which it took the position that PIPEDA provides for a right to de-indexing on request in certain cases.