Google’s attempt to argue that its lack of physical presence in Canada left it outside the jurisdiction of Canadian courts failed. On June 11, 2015, the B.C. Court of Appeal upheld an injunction prohibiting California-based Google Inc. from including specific websites of the defendants in results delivered by its search engines globally in Equustek Solutions Inc. v. Google Inc. (http://canlii.ca/t/gjgwv).
While Google was not a party to the action itself, the B.C. court found the order was within the jurisdiction and that the test for granting an injunction had been met. Google’s argument that the injunction violated its freedom of speech rights was rejected.
Google has no Canadian office; however, the court determined that key parts of its business were carried out within B.C. sufficient to bring the company within the jurisdiction, particularly because Google advertises to B.C. residents and gathers information by indexing websites that are either located in B.C. or the property of B.C. residents through its web crawler software “Googlebot”.
The court noted that courts of many jurisdictions have found it necessary in the context of “internet abuses” to grant orders with international effect.
As Canadians realize that their shopping, eating, travelling and exercising habits are being tracked daily, our privacy “spidey-sense” tingles. In this age of big data, the Office of the Privacy Commissioner of Canada (OPC) has a new strategic priority: giving Canadians more control over their personal information. On June 12, 2015, the OPC released a report summarizing its findings from extensive consultations with Canadians and mapping its priorities for the next five years. The report identifies four main priority areas:
1. Economics of personal information
2. Government surveillance
3. Reputation and privacy
4. Body as information
The common thread? Canadians’ discomfort with their lack of control over how their personal information is collected and used, including by government surveillance. To address these concerns, the OPC plans to:
1. Develop privacy-enhancing solutions as well as industry codes of practices and compliance agreements.
2. Suggest improvements to national security policies and legislation, such as Bill C-51 and the Anti-Terrorism Act.
3. Investigate and report on the activities of government organizations that collect personal information to ensure Privacy Act compliance.
4. Examine the “right to be forgotten” in the Canadian context.
5. Shape organizational practices through recommendations and court enforcement, and provide education and outreach to improve Canadians’ digital literacy.
6. Examine the dangers of a big data approach to health, genetic and biometric information and the potential for harmful secondary uses.
To achieve these objectives, the OPC plans to explore innovative and technological ways of protecting privacy. All good news for Canadians who increasingly face erosion of their privacy rights.
Kudos to Canada’s Privacy Commissioner. His persuasive powers helped protect Canadians’ privacy around the world. On June 15, 2015, the Globe and Mail reported that the Commissioner’s office was able to persuade the owners of a Romanian website that republishes international court decisions to delete personal information about more than two dozen Canadian litigants (https://secure.globeadvisor.com/servlet/ArticleNews/story/gam/20150615/RBCDPRIVACY). While CanLII does not allow court decisions to be indexed, the Romanian website Globe24h, does allow Google and other search engines to scan its contents and include them in search results. The result: the private details of Canadians in divorce and other proceedings come up when their names are searched.
While Canada’s privacy laws do not apply in Romania, according to the Globe article, the Privacy Commissioner was able to persuade the owners of the site to take down the court documents at issue “in almost all instances”.
This case is highlighted in The 2014 Annual Report to Parliament on the Personal Information Protection and Electronic Documents Act released last week by the Office of the Privacy Commissioner (OPC). According to the Globe article, the Privacy Commissioner highlighted this case in order to inform Canadians that the OPC can help resolve these kinds of problems.
While Canadian court decisions are public, the digital era has made it far easier for decisions – and the personal information they contain – to be found. Canadians can take some comfort in knowing that the OPC is willing to use its powers of persuasion to help reduce the risk of their private information being broadly disseminated.