OTTAWA – The Office of the Privacy Commissioner of Canada (OPC) is asking the Federal Court to help determine whether Google’s search engine is subject to federal privacy law when it indexes web pages and presents search results in response to queries of a person’s name.
In an application dated October 10, the OPC asks the court to consider the issue in the context of a complaint involving an individual who alleges Google is contravening the Personal Information Protection and Electronic Documents Act (PIPEDA) by prominently displaying links to online news articles about him when his name is searched.
The unnamed complainant alleges that the articles are outdated, inaccurate and disclose sensitive information about his sexual orientation and a serious medical condition, and that Google has caused him direct harm by prominently linking the articles to his name. The complainant requested that Google remove the articles in question from search results for his name, but Google declined to do so, suggesting instead that he contact the publishers of the articles.
According to the application, the OPC notified Google of the complaint. Google responded that PIPEDA does not apply in this context, and that if it does apply and requires the articles to be de-indexed, it would be unconstitutional under section 2(b) of the Canadian Charter of Rights and Freedoms.
Following public consultations, the OPC said that it took the view that PIPEDA provides for a right to de-indexing – which removes links from search results without deleting the content itself – by request in certain cases, such as web pages that contain inaccurate, incomplete or outdated information.
Noting that there is some uncertainty in the interpretation of the law, the OPC said that “in the circumstances, the most prudent approach is to ask the Federal Court to clarify the law before the OPC investigates other complaints into issues over which the office may not have jurisdiction if the court were to disagree with the OPC’s interpretation of the legislation.”
OPC added that investigations into complaints related to de-indexing requests will be stayed pending the results of the reference, and that it will also wait until this process is complete before finalizing its position on online reputation. (Its draft position on online reputation is available here).
