Reference regarding PIPEDA
Trudel Johnston & Lespérance is proud to represent the Canadian Internet Policy and Public Interest Clinic pro bono in an important Federal Court Reference question.
The Reference, FC File No T-1779-18, may have wide-ranging impacts on the scope of legal protection offered by the Personal Information Protection and Electronic Documents Act (PIPEDA), Canada’s primary federal privacy law.
PIPEDA applies to the collection, use and disclosure of personal information carried out in the course of “commercial activity”. The arguments advanced in this Reference could exclude key activities of platforms such as Google and Facebook from federal privacy protection on the basis that their activities are not “commercial” in nature. CIPPIC takes the position that PIPEDA was always intended to regulate these aspects of the digital economy, particularly where the mass collection and monetization of user-generated data are central to an entity’s business model.
The reference also examines whether a search engine’s activities are exclusively “journalistic” in nature, as PIPEDA does not apply to data processing conducted exclusively for journalistic purposes. CIPPIC argues that while the application of PIPEDA to platforms can sometimes raise concerns related to freedom of expression and the press, these challenges should not be addressed through the law’s jurisdictional provision. Instead, other aspects of the legislation and the Charter offer more appropriate and tailored protections for these important rights. CIPPIC therefore argues that Parliament did not intend to categorically exclude services like search engines from PIPEDA, and that such an interpretation would frustrate its intention to protect privacy in the digital age.
The Federal Court heard this case on January 26th and 27th and will render its decision in the coming months.