Canada: Federal Court of Appeal confirms Google Search is subject to privacy law
On September 29, 2023, the Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC) announced that the Federal Court of Appeal (FCA) had affirmed, in Case Number 2023 FCA 200 Google LLC v the Privacy Commissioner of Canada et. al., a lower court decision that found Google Search did not qualify for an exception to the Personal Information Protection and Electronic Documents Act 2000 (PIPEDA) for the collection, use, or disclosure of personal information for journalistic, artistic, or literary purposes.
Background to the decision
In particular, the decision arises from a reference brought by the Office of the Privacy Commissioner of Canada (OPC) with respect to whether Google Search was subject to PIPEDA. According to CIPPIC, Google argued that it was not engaged in commercial activity when it provided search results and that any search results leading to journalistic content would qualify for PIPEDA's exception for journalistic, artistic, or literary purposes. However, Associate Chief Justice Gagné of the FCA concluded that in offering Search, Google was in fact offering a commercial service and that it did not qualify for the journalism exception.
Findings of the Court
The majority of the FCA found that Google Search could not qualify as journalism, regardless of the test for journalistic purposes adopted and that Google Search returns results to a search query ranked in the order that Google considers most relevant to the user, regardless of the nature of the content. The FCA further stated that Google is indifferent to whether a search return includes snippets of journalistic content and accordingly found that Google could not benefit from the exception.
In light of the above, the FCA dismissed the appeal.