In the recent decision of A.T. v. Globe24h.com, the Federal Court held that the respondent’s re-hosting of publically available Canadian legal decisions ran afoul of the Personal Information Protection and Electronic Documents Act‘s (PIPEDA’s) restriction on the collection, use, and disclosure of personal information without consent, prioritizing the personal information of individuals against the broad open court principle that would otherwise warrant the unrestricted publication of judicial decisions.
The respondent operated a website out of Romania which focused on re-publishing judicial decisions which are already publically available through online services such as CanLII. The primary difference between the respondent and services like CanLII was that the respondent’s website was indexed such that its content would appear in search results on Google or other search engines, whereas decisions on CanLII are not indexed and would not appear on any search engine. Any person who collects, uses, or discloses personal information in respect of a commercial activity must do so in compliance with PIPEDA.
While the stated goal of the respondent was to make legal information open and available to all, the Federal Court considered the respondent’s primary business practice to be to charge individuals who wanted cases in which they were named to be removed from the respondent’s website. Individuals such as the applicant contended that they were required to pay the respondent in order to maintain privacy over their personal information that may have been disclosed in a judicial decision, and having these decisions indexed meant that these decisions were being shown to anyone who may search their names online, even if the searcher had no prior knowledge that they were involved in a legal dispute or any reason to make such an inquiry. The applicant argued that having decisions appear on search results would discourage people from bringing meritorious claims on the fear that their name will be forever associated with the dispute, which might impact employment prospects or otherwise cause reputational harm.
Having found that the website constitued a commercial activity, the court looked to the precise wording of PIPEDA to determine whether the respondent could be exempted from obtaining consent under one of the enumerated exceptions. First, the Court rejected the respondent’s argument that republishing decisions could be considered a “journalistic purpose”, primarily on the basis that the respondent did not supplement these decisions with original content that would be expected in the traditional sense of “journalistic” practices.
Second, the court also rejected the respondent’s reliance on the exception for publically available information. Notably, PIPEDA does not broadly exempt publically available information from requiring consent to be collected, used, or disclosed; it only exempts consent requirements for certain publically available information as specified in the regulations. In respect of court decisions, the exception is limited only to judicial or quasi-judicial records where the collection, use, and disclosure of that information “relates directly” to the purpose for which the information appears in the record. The Court concluded that the respondent’s purpose was not directly related to the open court principle, but was merely exploitative of persons who did not want their personal information broadly accessible to anyone on a simple web search.
Interestingly, the Court did not contrast the statute with already-existing mechanisms within the legal proceeding itself to keep personal information private. The court system already has principles and procedures that can be relied upon to limit the publication of personal information in court documents, including redactions, sealing orders, and publication bans. However, there is normally a high onus on the party seeking such relief to show why it should be granted in contravention of the open court principle. Under PIPEDA, the onus now falls to the party re-publishing the judicial decision to show that it has a purpose that is journalistic or otherwise “directly relates” to the purpose behind the original publication of the personal information.
The decision creates the curious result that prohibits the disclosure of publically available judicial decisions on the basis that the republished document is discoverable through an ordinary web search. In essence, the Court held that while access to judicial decisions through a service like CanLII is supportive of the open court principle, if the information becomes too accessible, such as through a simple web search, then the privacy rights of those named in the document has been unlawfully infringed.
If you are involved in privacy, defamation, intellectual property, or a similar dispute, contact us for an initial consultation.
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