Google would be regulating media under PIPEDA: counsel

OTTAWA — If a court determines Google’s search engine falls under the country’s private sector privacy law, then that would effectively make the internet company a media regulator, counsel to Alphabet Inc. said in Federal Court on Thursday. The court is currently in the process of determining whether search engine delisting -- the process of making certain information harder to find on the internet -- is captured under the Personal Information Protection and Electronic Documents Act (PIPEDA). In that case, the Office of the Privacy Commissioner (OPC), which brought the initial request for judicial clarity, would have the ability to order the internet behemoth to scrub its index. On Thursday, the court held a hearing for arguments about whether it should open the jurisdictional reference question to consider constitutional concerns brought forth by Google. The search engine giant is arguing that allowing the privacy commissioner to order its searches to be scrubbed -- for example, in cases related to an individual with a criminal record -- engages its constitutional right of free expression. David Fraser, counsel for Google and lawyer at McInnes Cooper, said that the situation is such that if the court were to find PIPEDA applies to the search engine, it would taint the search engine’s ability to function as merely an intermediary. “Google is acting as an adjunct to its users and an adjunct to, or an agent of, the publishers in connecting one with the other,” said Fraser, an expert on privacy matters. “And so in that environment, if it is subject to regulation, it is in fact regulating users and effectively regulating the publishers, the media, who are looking to reach their audience, and that is incompatible.” Google has already argued that PIPEDA’s journalistic protections shields the search engine from regulation under the legislation. Fraser argued that if PIPEDA were applied to journalists, they would be hamstrung by regulations that include having to have a privacy policy, giving individuals access to their own information, and giving individuals informed consent before publishing stories, which would touch on constitutional issues. Google search would have to abide by the same thing if under that law, he added. Peter Engelmann, who is counsel to the OPC, took issue with Google’s attempt to intertwine deindexing and constitutional matters, suggesting that Google is seeking to build a list of fallback arguments against having the search engine come under the privacy law. He said the arguments Google put forth as constitutional matters -- delisting or journalistic -- are jurisdictional ones in scope and should be dealt with as such. Google “wants this preemptive strike on PIPEDA,” Engelmann charged. Last month, CBC/Radio-Canada and the Media Coalition argued their case to intervene in the matter, which was later denied by the court. Earlier this month, the parties filed a notice to appeal the rejection, according to the court docket.

Google would be regulating media under PIPEDA: counsel

Brief | March 21, 2019

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Google would be regulating media under PIPEDA: counsel

Brief | March 21, 2019

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