Journalistic exemption under PIPEDA should apply to Google: CBC

In a case that could determine whether a "right to be forgotten" exists in Canada — and whether search engine results on Alphabet Inc.'s Google would be considered journalistic and thus exempt from de-indexing requests — CBC/Radio-Canada has told Federal Court that Google search results should fall under journalistic protections. In an intervention filed with the Federal Court Tuesday, the CBC told the court that Google "can and should be seen to be engaging in a journalistic purpose when it discloses personal information that is contained in links to 'journalism'," and argued that Google's links satisfy the American Press Institute's definition of journalism: to “provide citizens with information they need to make the best possible decisions about their lives, their communities, their societies and their governments.” Exempting Google under the Personal Information Protection and Electronic Documents Act (PIPEDA) carve out for journalism would give "the proper weight to the Charter rights of the public to receive information against the purely personal statutory interests that are meant to be balanced under the exclusion," the broadcaster argued in the intervention. That’s because in Canada, the “right to receive information on matters of public importance” has been recognized as an essential element of the freedom of the press, while there is no stand-alone right to privacy in information, it said. In September, Canada's federal privacy watchdog, the Office of the Privacy Commissioner, urged the court to find that PIPEDA applied to Google's search results, saying that its search results and its sales of advertising are inextricably linked, and thus Google “collects, uses and discloses personal information in the course of commercial activities.” In its filing this week, the CBC countered, saying that the OPC is encouraging the court to take a narrow view of the journalistic exemption, and that the OPC is "stating that the rights of the media are adequately addressed by permitting the material to remain accessible on the originating site" after de-indexing the search listing. That argument, the CBC continued, "demonstrates a fundamental lack of understanding of how users interact with the internet." "Any rule that serves to remove information from search engine results effectively relegates that information to the far reaches of the internet where it will never be discovered," the CBC argues in the filing. "In short, removing the information from search engines like Google removes the information entirely from the public realm, even if technically it still available somewhere." In a separate intervention in the case this week, the Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic at the University of Ottawa (CIPPIC), on the other hand argued that Google's dissemination of journalistic information is not enough to shield it from Canadian privacy law. "The fact that an organization happens to permit the dissemination or discovery of journalistic content through its platform is not sufficient to immunize its activities from scrutiny under PIPEDA as a whole. The Act and the Charter provide other safeguards in this respect," CIPPIC argued. CIPPIC continued that should the court exempt Google's search results from PIPEDA, "it would exempt some of the most significant modern e-commerce business models from PIPEDA’s protective scope." Search engines like Google, CIPPIC said, collect, use, and disclose personal information to generate profit. "The fact that news content is available on search engines does not mean that the search engine’s own purposes are solely or even incidentally 'journalistic' in nature," CIPPIC wrote. "Indeed, when a search engine like Google links to newspaper articles, the company’s purposes are no more 'journalistic' than Amazon’s purposes are 'literary' when it sells books or Spotify’s purposes are 'artistic' when it distributes music." The OPC has long argued that de-indexing exists as a right in Canada, and filed an application for reference to the court in 2018, after receiving a complaint from an individual who was charged with failing to disclose HIV status to a sexual partner. “The mere fact that media organizations may rely on Google’s search engine as a means to connect with the public when links to their news articles are returned in response to a Google search does not make Google’s purposes for collecting, using and disclosing information journalistic,” the OPC argued in its September submission in the reference case. “This argument conflates Google’s purposes with that of the underlying websites that it indexes and includes in search results.” A chief Federal Court clerk last year rejected Google’s request to expand the scope of the reference to include constitutional questions. — With reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Anja Karadeglija

Journalistic exemption under PIPEDA should apply to Google: CBC

Broadcast | November 26, 2020

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Journalistic exemption under PIPEDA should apply to Google: CBC

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