Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic
CIPPIC Intervenes in Key Reference with Potential to Reshape Privacy Law in Canada
Today, CIPPIC presented its intervention in a hearing before the Federal Court as part of a reference launched by the Office of the Privacy Commissioner of Canada. At issue is the degree to which PIPEDA - Canada's federal privacy law - applies to activities of commercial search engines.
As noted in our written submissions:
PIPEDA applies to commercial search engines.
In order to determine whether personal information is collected, used or disclosed in the course of commercial activities under s. 4(1)(a) of PIPEDA, the Court must evaluate the relationship between that information and the organization’s business model. The commercial value of most Internet companies and social media platforms is derived by providing a free service to attract user’s time, attention and personal information, which is then monetized through advertising, tracking and profiling. A restrictive definition of “commercial activity” which includes nothing but discrete, revenue-generating interactions ignores precisely the kinds of business models that drive the digital economy and that PIPEDA was intended to regulate.
Whether the collection, use or disclosure of personal information is undertaken for exclusively “journalistic” purposes must be determined with reference to Parliament’s intent and the constitutional rationale for the exclusion set out in s. 4(2)(c) of PIPEDA. This analysis must account for the particular role played by a free, adversarial and independent press in a democratic society—through newsgathering, source protection, the exercise of professional discipline and editorial judgement, and a commitment to communication on matters of public interest. 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.
The remedy sought by the Complainant has obvious implications for section 2(b) Charter rights and a conclusion that PIPEDA applies to commercial search engines may eventually raise other constitutional and policy questions. However, the rules of statutory interpretation do not permit the Court to preempt these debates by distorting the meaning of the Act’s application clause to exclude certain organizations from Canadian privacy regulation altogether. Appropriate and properly tailored constitutional remedies are available in the event that these concerns are well-founded in law and actually materialize.
CIPPIC was granted leave to intervene by order of Case Management Judge Steele to, among other matters:
propose a distinct viewpoint on how to assess the “commercial” nature of Google, and other similar entities and to discuss the way social media and e-commerce websites monetize user-generated content and interactions since these may be relevant considerations to define “commercial activity”.
CIPPIC is being represented by Me Lex Gill from Trudel, Johnstone & Lespérance.
Key public materials:
- Office of the Privacy Commissioner of Canada, Applicant's Public Memorandum of Fact and Law, September 8, 2020
- Complainant, Public Memorandum of Fact and Law, September 23, 2020
- Google, Respondent's Memorandum of Fact and Law, November 9, 2020
- Attorney General of Canada, Intervener's Memorandum of Fact and Law, November 9, 2020
- CIPPIC, Intervener's Memorandum of Fact and Law, November 24, 2020
- CBC, Intervener's Public Memorandum of Fact and Law, November 24, 2020
