Federal Court ruling in A.T. v. Globe24h.com1 raises issues concerning the reach of Canadian courts’ jurisdiction
In A.T. v. Globe24h.com, the Federal Court of Canada (the Court) held that the Personal Information Protection and Electronic Documents Act (PIPEDA) can apply extraterritorially, and granted injunctive relief with extraterritorial effect to remedy the violation of PIPEDA. This decision raises issues concerning the reach of Canadian courts’ jurisdiction and the principle of comity, and could have a significant impact on foreign websites that contain information about Canadian residents. It follows in the footsteps of the British Columbia Court of Appeal’s decision of Equustek Solutions Inc. v. Google Inc.,2 which also concerns extraterritorial remedies and is under reserve at the Supreme Court of Canada.
The respondent, Globe24h.com, reposts Canadian court and tribunal decisions that are also available on Canadian legal websites, such as CanLii. The difference between CanLii and Globe24h.com is that the decisions on Globe24h.com are indexed, allowing them to be located by search engines(Search engines use bots to crawl webpages and add website content to the engine’s index; but website code can include instructions for a search engine not to index a webpage.)
The Office of the Privacy Commission of Canada (OPCC) and CanLii had received complaints about Globe24h.com. The OPCC investigated its use of the complainants’ personal information and found that this use violated PIPEDA.
Following the OPCC’s report, A.T. commenced an application against Globe24h.com and its owner. A.T. is a Canadian resident who discovered, through Google searches, that an Alberta Labour Board decision to which he was a party had been republished through Globe24h.com. The OPCC was a respondent and participated in the proceedings. Globe24h.com and its owner did not participate in the proceedings.
Concurrently with this action, A.T. pursued an action against Globe24h.com with the Romanian equivalent of the OPCC. This proceeding resulted in a fine payable by Globe24h.com. Globe24h.com appealed the fine to a Romanian court. The appeal was ongoing as of the date of hearing the application.
The Court addressed two private international law issues that arose in this case: (1) whether PIPEDA applied to Globe24h.com as a foreign organization; and (2) whether the Court could grant relief that applied outside of Canada.
The Court held that PIPEDA applied to Globe24h.com because there was a “sufficient connection” between the website and Canada. PIPEDA is silent with respect to its territorial link; there is no language expressly limiting its application to Canada. Citing the Supreme Court of Canada’s decision in SOCAN ,3 the Court held that in the absence of clear guidance from a statute, the statute could be interpreted to apply in all circumstances in which there exists a “real and substantial link” to Canada.4Examining the relevant connecting factors, the Court held that while the website and server are located in Romania, the physical location of the server is not relevant because telecommunications occur “both here and there.”5The Court accepted the evidence of the OPCC that the content at issue was Canadian decisions copied from Canadian websites; the website targeted Canadians through its advertising; the majority of the visitors to the website were from Canada; and the impact of the website was felt by Canadians.
On the issue of comity, the Court relied on Chevron Corp v. Yaiguaje6, a case about enforcement of foreign judgments, to hold that the Canadian action would complement the actions taken by Romanian officials. The Court held that “[t]he principle of comity is not offended where an activity takes place abroad but has unlawful consequences here.”7
(2) Extraterritorial order
Relying heavily the British Columbia Court of Appeal’s decision in Equustek, granting an interlocutory injunction requiring Google to de-index certain websites from its search engine, the Court held that it had jurisdiction to issue an order requiring Globe24h.com to correct its practices to comply with PIPEDA. This injunction required Globe24h.com to remove all Canadian decisions from its site and take the necessary steps to remove those decisions from search engines. The Court noted that while there is no general bar to making an extraterritorial order where the underlying dispute is within the jurisdiction of the Court, the Court should exercise restraint in granting remedies with international implications.
The Court also declared that Globe24h.com has not complied with PIPEDA, which would allow those whose information appears in Google search results due to its posting on Globe24h.com to request removal of the content from Google directly (which also raises a question as to whether the Court recognized a “right to be forgotten”).8
This decision could have broad implications for foreign companies that operate websites that contain information about Canadian residents and are visited by Canadians, given both the broad application of PIPEDA in this case and the extraterritorial order that was granted.
However, one concern is that the respondent did not participate in the proceedings. This meant that the Court was addressing only submissions of the OPCC, as the applicant provided limited submissions and generally supported those of the OPCC. There was some reference made to the respondent’s submissions in the earlier PIPEDA investigations, but it is unclear what opposing positions of law the Court considered in reaching its conclusions, or whether there were any submissions on the potential consequences of its order outside of Canada.
This is particularly evident on the issue of comity. In finding that the principle of comity weighed towards the extraterritoriality of PIPEDA, the Court relied heavily on Chevron, a case involving enforcement of foreign judgments. In that context, the principle of comity promotes recognition of foreign judgments, because the proceeding has already been completed in a foreign court and the Canadian court is assisting in enforcing it. Here, while the Court was correct that the Romanian authorities are cooperating with the privacy prosecution, an appeal was pending in those proceedings at the time of judgment. The Court ultimately ran the risk of coming to a different conclusion than the Romanian authorities.
In addition, the Court’s reliance on Equustek should be viewed with caution. The British Columbia Court of Appeal in Equustek stated “courts should be very cautious in making orders that might place limits on expression in another country. Where there is a realistic possibility that an order with extraterritorial effect may offend another state's core values, the order should not be made.”9 In this case, there was no analysis of freedom expression laws in Romania, or any consideration as to whether an order would infringe any of Romania’s other “core values”.
Finally, given that the Supreme Court of Canada has not yet had the final word in Equustek, it is unclear to what extent extraterritorial orders will remain available.
There has been no appeal from the decision in A.T.