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Internet - Google. Google LLC v. Canada (Privacy Commissioner)
In Google LLC v. Canada (Privacy Commissioner) (Fed CA, 2023) the Federal Court of Appeal reviews basic activities of Google, here in a PIPEDA appeal:A. Operation of Google Search
[18] Google describes its mission as “to organize the world’s information and make it universally accessible”. Google Search is the world’s leading internet search engine; some estimates suggest that it is used to conduct 70 to 75 percent of all internet searches globally. According to Google, millions of searches using Google Search are carried out each day.
[19] In her reasons, the reference judge helpfully summarized as follows the operation of Google Search:[14] Google Search operates through three basic functions: crawling, indexing, and displaying search results. Crawling is an automated process that involves the use of software called a “crawler” that continuously accesses publicly available webpages and transmits information from those webpages to be indexed or referenced. As pages are updated over time, Google’s crawlers access the updated version of the pages. Information identified by the crawler is then added to an index where Google organizes the information. This index displays an entry for each word on each webpage indexed. The index is updated if a new webpage appears or an existing webpage is altered or removed.
[15] When an individual enters a search query, Google Search uses algorithms to display search results linking to the relevant web pages in the index, ranked from most to least relevant. Google Search displays the title of the webpages, links to the webpages, and automatically generated short textual “snippets” from the webpages. The information displayed is content from the webpage itself and is subject to the instructions of website operators.
[16] Google displays responses to a user search query in the order that Google considers of likely interest to the user as determined by algorithms maintained by Google, which analyze many different factors, including how recent the content is and the number of times it has been linked to by prominent websites. [20] The reference judge went on to summarize the role of website operators in the process and the way in which Google derives revenue from Google Search:[17] Website operators have control over whether their content is displayed by Google Search. Website operators may configure their servers to refuse to respond to requests for access from one of Google’s crawlers, preventing the contents of that URL from being indexed and displayed by Google Search. Operators can also provide more detailed instructions to Google on whether and how to capture particular content through files titled “robots.txt”.
[18] For news articles, like the content at issue here, news organizations control what stories appear in Google Search as part of their overall journalistic mission: first, by deciding what to publish on their website; then, by deciding whether to remove or change any information on their website; and finally, they can use robots.txt files to direct Google on which stories from their websites to include in Google Search. The evidence before the Court is that all of the news organizations at issue in the complaint allowed Google to include their web pages in Google Search.
[19] Google generates revenue when users click on advertisements displayed in a search result. Although ads are not displayed in response to all queries, whether ads appear will depend on keywords selected by advertisers and not on categories of search that Google chose to exempt from advertisement. An advertiser creates the text of the advertisement and selects keywords in respect of which it wants its advertisement to be displayed. That advertisement will then be displayed in response to a query for those keywords. On a search result where advertisements are displayed, they are given the “Ad” label and appear before the search results. . Google LLC v. Canada (Privacy Commissioner)
In Google LLC v. Canada (Privacy Commissioner) (Fed CA, 2023) the Federal Court of Appeal considered (and denied) an appeal against a Federal Court reference ruling (initiated by the Privacy Commissioner of Canada) that PIPEDA applied to Google's operation in Canada.
In these quotes the court concludes that PIPEDA (Part 1) does apply to Google's search engine activities as they do not "involves the collection, use, or disclosure of personal information for journalistic, artistic or literary purposes and for no other purpose" (the 'journalistic purpose' exception) [PIPEDA s.4(2)(c)]:[41] In answering this question, the reference judge did not accept Google’s submission, supported by the intervener Canadian Broadcasting Corporation / Société Radio-Canada (CBC), that she should consider only the articles published by recognized news media that prompted the complaint. She pointed out that even if the Court’s analysis was limited to searches on an individual’s name, a search of that kind could return not only news articles but a variety of other types of content, including personal blogs and websites, social media sites, and websites of businesses, governments, and non-governmental organizations. The resulting display of personal information, she stated, could go well beyond media content; it was “wide and varied”.
[42] The reference judge went on to address the contention that Google Search facilitates access to information, such as news media, and should therefore be regarded as publishing that information, an element of journalism. In declining to accept that proposition, the reference judge drew by analogy on Crookes v. Newton, 2011 SCC 47 at paras. 27-30, in which the Supreme Court held in the defamation context that hyperlinks do not amount to publication of the linked information. Like hyperlinks, she reasoned, internet searches give the search engine no control over content, express no opinion, and involve no content creation. An “ordinary understanding of the word journalism,” she stated, “encompasses content creation and content control [...]”.
[43] The reference judge found support for this proposition in the three-part definition of journalism developed by the Ethics Advisory Committee of the Canadian Association of Journalists (CAJ), proposed by the Commissioner and accepted by the Federal Court in AT v. Globe24h.com, 2017 FC 114 at para. 68. According to that definition, as set out by the Court in Globe24h.com,an activity should qualify as journalism only where its purpose is to (1) inform the community on issues the community values, (2) it involves an element of original production, and (3) it involves a “self-conscious discipline calculated to provide an accurate and fair description of facts, opinion and debate at play within a situation”. [44] The reference judge concluded that the operation of the Google search engine did not meet the Globe24h.com test, even if only the search results for the complainant’s name were considered:[F]irst, Google makes information universally accessible, which is much broader than informing a community about issues the community values; second, Google does not create or produce anything—it only displays search results; and third, there is no effort on the part of Google to determine the fairness or the accuracy of the search results. The publishers would be accountable for the accuracy of the content of a search result, not Google. [45] Continuing with her analysis of the second question, the reference judge turned to the “and for no other purpose” element of paragraph 4(2)(c). She agreed with the proposition put forward by Google that this phrase does not exclude commercial organizations because, in order for a paragraph 4(2)(c) issue to arise, the organization must be engaged in commercial activities within the meaning of subsection 4(1).
[46] However, she stated, citing the statutory interpretation principle that the legislature does not speak in vain and the presumption against tautology, this did not mean that the phrase has no meaning. The exemption under paragraph 4(2)(c) applies only where information is collected, used or disclosed exclusively for journalistic purposes, and she saw it as clear that the purposes of Google Search extend beyond journalism. She characterized its primary purpose as to index and present search results. This, she stated, was not primarily a journalistic purpose, because the only defining feature of journalism it entailed was to facilitate access to information.
[47] The reference judge also rejected the CBC’s submission that PIPEDA should be interpreted and applied in a manner that protects the freedom of expression guaranteed by the Charter. Referring to the Supreme Court’s decision in Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47 at para. 25, she stated that it was not necessary to resort to Charter values in interpreting a statute absent a genuine ambiguity in its interpretation. She saw no ambiguity in the case before her: Parliament had limited PIPEDA to protecting journalism specifically and not expression more generally; it had protected the collection, disclosure, and use of personal information only for exclusively journalistic purposes; and the ordinary understanding of journalism, as proffered by journalists themselves, did not extend to Google’s search engine.
[48] She expressed her overall conclusion on the paragraph 4(2)(c) exemption issue as follows: “Google’s purposes for collecting, using and disclosing personal information […] are not journalistic, and they are certainly not exclusively so.” Accordingly, she answered “no” to the second reference question. At paras 67-91 the court considers (and dismisses) Google's appeal arguments on this 'journalistic purpose' exception.
. Google LLC v. Canada (Privacy Commissioner)
In Google LLC v. Canada (Privacy Commissioner) (Fed CA, 2023) the Federal Court of Appeal considered (and denied) an appeal against a Federal Court reference ruling (initiated by the Privacy Commissioner of Canada) that PIPEDA applied to Google's operation in Canada.
In these quotes the court concludes that PIPEDA (Part 1) does apply to Google's search engine activities as they "service, collect, use or disclose personal information in the course of commercial activities within the meaning of paragraph 4(1)(a) of PIPEDA when it indexes web pages and presents search results in response to searches of an individual’s name":[38] On the first sub-question, the reference judge determined that Google engages in collection when its crawlers access and copy the content on publicly accessible webpages, that it uses and discloses personal information of the subjects of a search, and that (as Google acknowledged) it also collects, uses, and discloses personal information of the individuals performing a search.
[39] On the second sub-question, she rejected Google’s contention, based on the traditional meaning of the term, that its search engine is not engaged in commercial activities. She described Google’s approach to this sub-question, which focused in large part on the fact that a search is free to the user, as “microscopic”, and as failing to recognize that personal information has itself become a commodity, which can be mined and used for profit. She referred to, among other things, the fact that Google is a for-profit corporation, and its acknowledgments that the bulk of its revenue comes from advertising, and that its search and other online services generate most of its advertising revenue. She found that “every component of [Google’s] business model is a commercial activity as contemplated by PIPEDA.” Accordingly, she answered the first reference question in the affirmative.
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