FCA Confirms It: Google Search Remains Subject to Privacy Law

In a 2-1 decision, the Federal Court of Appeal has affirmed [1] a lower court decision [2] that found that Google Search did not qualify for an exception to PIPEDA for the collection, use, or disclosure of personal information for journalistic, artistic, or literary purposes.

The decision arises from a reference brought by the Privacy commissioner of Canada in respect of whether Google Search was subject to PIPEDA, Canada’s private sector commercial privacy legislation. Google argued that it was not engaged in commercial activity when it provided search results, and that any search results leading to journalistic content would qualify for PIPEDA’s exception for journalistic, artistic or literary purposes.  At first instance, Associate Chief Justice Gagné concluded that in offering Search, Google was in fact offering a commercial service and that it did not qualify for the journalism exception. 

On appeal, Google argued that the reference judge incorrectly concluded that the journalistic purpose exception did not apply. Writing for the majority, Justice Laskin considered that Google Search could not qualify as journalism, regardless of the test for journalistic purpose adopted. Google Search returns results to a search query ranked in the order that Google considers most relevant to the user, regardless of the nature of the content. Google is indifferent to whether a search return includes snippets of journalistic content. Accordingly, Google could not benefit from the exception.

Writing in dissent, Justice Webb argued that Google’s search engine collected and disclosed personal information contained in newspaper articles, which indisputably qualify as journalism – and it was only those issues that were referenced to the Court below.  Google’s purpose in collecting such information was to make it more accessible – a journalistic purpose.

• Google v The Privacy Commissioner of Canada et al., 2023 FCA 200 [1]