OPC to seek court reference on search engine delisting

OTTAWA — Federal privacy commissioner Daniel Therrien says he plans to ask the Federal Court for a reference on whether the private sector’s privacy law applies to search engine de-indexing. In the Office of the Privacy Commissioner of Canada’s (OPC) annual report to Parliament, tabled Thursday morning, Therrien said Alphabet Inc.’s Google told his office, in a response to a complaint about Google search results, that the Personal Information Protection and Electronic Documents Act (PIPEDA) does not apply to its search engine service. Google also asserted that even if PIPEDA did require search engine de-indexing, it wouldn’t be constitutional, Therrien said. Therrien’s draft position, announced earlier this year, runs contrary to that position. It states PIPEDA applies to search engines and that individuals can challenge search results involving their names on grounds such as accuracy and completeness – a position some have compared to the ‘right to be forgotten’ in the European Union’s General Data Protection Regulation (GDPR). His annual report said he will ask for a court ruling to settle the matter. “The reference will seek a determination as to whether Google’s search engine service collects, uses or discloses personal information in the course of commercial activities and is therefore subject to PIPEDA, and whether Google is exempt from it because its purposes are exclusively journalistic or literary,” Therrien’s report said. “Our position will remain in draft form and the complaints received will be kept in abeyance pending a resolution by the Court as to the applicability of PIPEDA.” A House of Commons committee report recommended in February that the government should consider adding a framework in PIPEDA to set out a clear “right to erasure” that, at minimum would allow young people to “have information posted online either by themselves or through an organization taken down,” and for the “right to de-indexing” of information posted online by people when they were still minors. The government’s response, issued in June, said it would need to assess whether PIPEDA “would be the most appropriate statutory instrument” for addressing issues such as de-indexing. Therrien otherwise used his annual report to press the government to give his office more teeth and a bigger office budget to the tune of $12 million. He said in a press release Thursday that privacy concerns are reaching “crisis levels” and Parliament should react by granting his office new powers and drafting stronger privacy laws. Therrien pointed in the report to a number of data breaches by companies over the past year – Equifax Inc., Uber Technologies Inc., and Nissan Canada Finance, and the Facebook Inc. Cambridge Analytica scandal – calling them a “serious wake-up call that highlighted a growing crisis for privacy rights.” In March, Therrien launched an investigation into the Facebook and Cambridge Analytica data sharing incident after it was reported to have been inappropriately used for political purposes. In his report, he criticized the country’s privacy laws as being “quite permissive” and said they give companies “wide latitude to use personal information for their own benefit.” He told reporters Thursday that his office should be granted new powers to make orders and issue monetary penalties so companies can’t ignore his privacy guidelines – something he’s asked from Parliament for some time now. Last spring, his office issued guidelines for obtaining meaningful consent for data collection, but some industry groups said they might not follow the advice, he said. Therrien has in the past said without them, his powers are in some respects weaker than some of his provincial or international counterparts. Innovation Minister Navdeep Bains told reporters on the way into question period Thursday that he welcomes the report but defended the Liberal government’s record amid the renewed criticisms, saying it has “taken action when it comes to protecting privacy of Canadians.” Bains pointed to launching a national data consultation and new regulations coming into force in November that will force companies to notify individuals and the privacy commissioner in the instance of a breach, or otherwise face a $100,000 penalty per breach. “So clearly, that demonstrates we’ve taken some action,” he said. Federal cabinet passed an order-in-council in March this year that stated its long-awaited mandatory breach notification rules will come into force this fall – three years after the Digital Privacy Act passed in 2015 which established them. But Therrien said progress from the federal government on privacy has been “slow to non-existent,” and that it “failed” to create strong privacy laws for political parties – something the House of Commons ethics committee has also called for, along with Therrien’s provincial and territorial counterparts. He added that his office will also need more resources to be able to meet the new obligations for breach reporting come November. — With reporting by Kyle Duggan at kduggan@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

OPC to seek court reference on search engine delisting

News | September 27, 2018

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OPC to seek court reference on search engine delisting

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