Court rejects Google motion to expand scope of deindexing case

A chief Federal Court clerk has rejected Alphabet Inc.’s request to expand to constitutional questions the scope of a legal reference that seeks to determine whether Canada’s private sector privacy law applies to its search engine. In a decision on Tuesday, court prothonotary Mireille Tabib said neither the court nor a party to a reference question -- Google in this case -- has the authority to “approve, rephrase or expand the scope” of the reference, which was made by the office of the privacy commissioner (OPC) to get a judicial opinion on whether it could order the search engine operator to remove from its index certain searches to make them more difficult to find. Google said orders to delist search results touch on its freedom of expression rights. In the 23-page decision, Tabib agreed with the OPC and intervenor Attorney General of Canada that only a federal board, like the OPC, can make any changes to a reference. But she said Google will still be able to “argue on the merits of the reference that the Court cannot or ought not to answer the reference questions as posed without also answering the constitutional issues framed in the notice of constitutional question.” And even in the event the court finds that PIPEDA applies to Google’s search engines, Tabib said in her decision that, should the OPC then order a search deindexing, Google can then again raise those constitutional concerns in front of a court. The OPC’s original application was filed last year and followed a complaint filed by an individual, who was charged with failing to disclose HIV status to a sexual partner. Media groups, including CBC/Radio-Canada, asked the court to grant them intervenor status -- as they said the issue would affect how journalists would do their work -- but were rejected. They were given an opportunity to reapply when the Google motion was determined. The essential questions for the court to answer now are: In operating its search engine, does Google collect, use or disclose personal information during commercial activities under PIPEDA when it indexes pages; and is the operation of that search engine excluded under the journalistic, artistic and literary exemptions under that law?

Court rejects Google motion to expand scope of deindexing case

Brief | April 17, 2019

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Court rejects Google motion to expand scope of deindexing case

Brief | April 17, 2019

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