PIPEDA’s global extra-territorial jurisdiction and right to be forgotten: A.T. v. Globe24h.com

February 1st, 2017 by Barry Sookman Leave a reply »

The Federal Court of Canada released a landmark decision finding that the court has the jurisdiction to make an extra-territorial order with world-wide effects against a foreign resident requiring the foreign person to remove documents containing personal information about a Canadian citizen that violates the person’s rights under Canada’s privacy law, the Personal Information Protection and Electronic Documents Act (PIPEDA). In A.T. v. Globe24h.com, 2017 FC 114 the Honourable  Mr Justice Mosely ordered the individual operator of the website Globe24h.com to remove all Canadian tribunal and court decisions  posted on the site that contain personal information and to take all necessary steps to remove the decisions from search engines caches.

The decision arose from an application made under section 14 of PIPEDA which enables a complainant to the Office of the Privacy Commissioner, after receiving the Commissioner’s report, to apply to the court for a hearing in respect of any matter in respect of which the complaint was made, or that is referred to in the Commissioner’s report. The legal process was used by an individual who complained that Globe24th.com, a site hosted and operated from Romania, was re-publishing decisions of Canadian courts and tribunals containing personal information including personal information about him, for the purpose of demanding fees from aggrieved persons to take the content down.

While the decisions published were generally available on other sites such as Canlii those sites did not make the information available for indexing by search engines. Thus, while the public could find the decisions online, this would not happen merely by virtue of searching on someone’s name using a search engine like Google.

The site operator claimed that PIPEDA did not have extra-territorial application over him because the activities were conducted from the foreign website. The argument was rejected by the court relying on prior decisions that clearly confirmed the potential extra-territorial application of PIPEDA where a real and substantial connection is established.

 [50]           Section 4 of PIPEDA, the application provision for Part I, is silent with respect to the statute’s territorial reach. However, there is no language expressly limiting its application to Canada. In the absence of clear guidance from the statute, the Court can interpret it to apply in all circumstances in which there exists a “real and substantial link” to Canada, following the Supreme Court’s guidance in Society of Composers, Authors and Music Publishers of Canada v Canadian Assn. of Internet Providers, 2004 SCC 427, [2004] 2 SCR 427 at paras 54-63 [SOCAN] and the other authorities cited therein…

[52]           As Mr. Radulescu and Globe24h.com are foreign-based, the Court must consider whether there is a real and substantial connection between them and Canada to find that PIPEDA applies to their activities. The operative question underlying the test is “whether there is sufficient connection between this country and the [activity] in question for Canada to apply its law consistent with the ‘principles of order and fairness’” and international comity: SOCAN, above, at paras 57 and 60.

[53]           This Court has applied PIPEDA to a foreign-based organization where there was evidence of a sufficient connection between the organization’s activities and Canada: Lawson v Accusearch Inc (cob Abika.com), 2007 FC 125 (CanLII), [2007] FCJ No 164 at paras 38-43 [Lawson]. The relevant connecting factors include (1) the location of the target audience of the website, (2) the source of the content on the website, (3) the location of the website operator, and (4) the location of the host server: SOCAN, above, at paras 59 and 61; see also Lawson, above, at para 41; Davydiuk v Internet Archive Canada, 2014 FC 944 (CanLII), [2014] FCJ No 1066 at paras 31-32 [Davydiuk]; Desjean v Intermix Media, Inc, 2006 FC 1395 (CanLII), [2006] FC 1395, [2007] 4 FCR 151 at para 42 [Desjean], aff’d 2007 FCA 365 (CanLII); Equustek Solutions Inc v Google Inc, 2015 BCCA 265 (CanLII), leave to appeal to the SCC granted [2015] SCCA No 355 [Equustek].

[54]           In this case, the location of the website operator and host server is Romania. However, when an organization’s activities take place exclusively through a website, the physical location of the website operator or host server is not determinative because telecommunications occur “both here and there”: Libman v The Queen, 1985 CanLII 51 (SCC), [1985] 2 SCR 178 at p 208 [Libman].

[55]           In its submissions, the OPCC highlights three key connecting factors between the foreign-based website and Canada. First, the content that is at issue is Canadian court and tribunal decisions containing personal information which was copied by the respondent from Canadian legal websites. Second, the website directly targets Canadians by specifically advertising that it provides access to “Canadian Caselaw”/”Jurisprudence de Canada”. The evidence is that the majority of visitors to Globe24h.com are from Canada. Third, the impact of the website is felt by members of the Canadian public. This is evidenced by the complaints received both by the OPCC and media reports of individuals suffering distress, embarrassment and reputational harm because of Globe24h.com republishing their personal information and making it accessible via search engines. The respondent is aware of these complaints.

[56]           There is evidence that the Romanian authorities have acted to curtail the respondent’s activities and that they have cooperated with the OPCC investigation.  Is that sufficient reason not to exercise the PIPEDA jurisdiction in this context? I think not.  I accept the submission of the OPCC that the principle of comity is not offended where an activity takes place abroad but has unlawful consequences here: Libman, above, at p 209….

[57]           In Chevron Corp v Yaiguaje, 2015 SCC 42 (CanLII), [2015] 3 SCR 69 [Chevron], the Supreme Court was asked to determine whether the Ontario Courts have jurisdiction over a Canadian subsidiary of Chevron, an American corporation and a stranger to the foreign judgment for which recognition and enforcement was being sought in Canada. In that case, the Ontario Court of Appeal had affirmed an Ecuadorian judgment against Chevron.

[58]           In upholding the Ontario Court of Appeal’s decision, Justice Gascon noted that “Canadian courts, like many others, have adopted a generous and liberal approach to the recognition and enforcement of foreign judgments”: Chevron, above, at para 23. The only prerequisite for recognizing and enforcing such a judgment is that the foreign court had a real and substantial connection with the litigants or with the subject matter of the dispute, or that the traditional bases of jurisdiction were satisfied: Chevron, above, at para 27.

[59]           On the principle of comity, Justice Gascon observes that “the need to acknowledge and show respect for the legal action of other states has consistently remained one of the principle’s core components”: Chevron, above, at para 53. In this regard, comity militates in favour of recognition and enforcement. The principle of comity further provides that legitimate judicial acts should be respected and enforcement not sidetracked or ignored: Chevron, above, at para 53.

[60]           In the case at bar, since Romanian authorities have cooperated with the OPC investigation and taken action to curtail the respondent’s activities, the legitimate judicial acts of this Court will not be seen as offending the principle of comity. The respondent was fined for contravening Romanian data protection laws by, among other things, charging a fee for the removal of personal information from Globe24h.com. The respondent has appealed this fine to a Romanian court. Given the involvement of the Romanian counterpart to the OPCC, this Court’s findings would compliment rather than offend any action that may be taken in a Romanian court.

Justice Mosely also used the occasion to clarify a passage from the Van Breda decision of the Supreme Court which has sometimes mistakenly been read as suggesting that Canadian courts do not have personal jurisdiction (or territorial competence) over persons whose only connections to the Canadian forum are electronic.

[61]           During the OPCC’s investigation, the respondent relied on the Supreme Court’s decision in Club Resorts Ltd v Van Breda, 2012 SCC 17 (CanLII), [2012] 1 SCR 572 [Van Breda] to argue that the PIPEDA did not apply to his activities in Romania. Van Breda concerned two individuals that were injured while on vacation outside of Canada. Actions were brought in Ontario against a number of parties, including Club Resorts Ltd., a company incorporated in the Cayman Islands.

[62]           Club Resorts Ltd., the appellant in Van Breda, argued that the Ontario courts lacked jurisdiction. To determine the issue of jurisdiction, the Supreme Court applied the “real and substantial connection” test. The Court had to consider whether carrying on business in the jurisdiction may also be considered an appropriate connecting factor. Ultimately, the Court found that the notion of carrying on business requires some form of actual, not only virtual, presence in the jurisdiction, such as maintaining an office there or regularly visiting the territory of the particular jurisdiction: Van Breda, above, at para 87.

[63]           However, I note that the Supreme Court was careful to distinguish between traditional categories of business and “e-trade”. Justice LeBel noted that the Court was not asked to decide whether e-trade in the jurisdiction would amount to a presence in the jurisdiction. Had there been a discussion about jurisdiction in the context of e-trade, I would have considered the connecting factors discussed in Van Breda as helpful to the analysis in the case at bar.

[64]           Van Breda was limited to the specific context of tort claims. The Supreme Court was clear that it was not, in that case, providing an “inventory of connecting factors covering the conditions for the assumption of jurisdiction over all claims known to the law”: Van Breda, above, at para 85. The Court was concerned about creating what would amount to forms of universal jurisdiction in respect of tort claims arising out of certain categories of business or commercial activity. As such, Justice LeBel confined the application of Van Breda to limited areas of private international law and international tort: Van Breda, above, at para 87; see also Chevron, above, at paras 38-39; Davydiuk, above, at paras 28-29.

The site operator claimed he was protected by the journalism and publicly available exceptions in PIPEDA. Both the Commissioner and the court easily dismissed those defenses. The court also had no trouble concluding that the collection, use and disclosure of personal information in the decisions on the website was not for an appropriate purpose under subsection 5(3) of PIPEDA.

Having found personal jurisdiction over the respondent website operator, the court then examined whether it had the jurisdiction to make an order with extra-territorial effects. Following recent decisions including the decision of the British Columbia Court of Appeal in Equustek Solutions Inc v Google Inc, 2015 BCCA 265 (CanLII), leave to appeal to the SCC granted [2015] SCCA No 355, the court concluded that the jurisdiction existed and could be exercised on the facts of the case without impinging any concerns related to comity.

[80]           The OPCC supports the applicant’s request for an order requiring the respondent to correct his practices in order to comply with PIPEDA under paragraph 16(a). The respondent not being a resident of Canada does not bar the making of an extra-territorial order where the underlying dispute is within the jurisdiction of the court: Impulsora Turistica de Occidente, SA de CV v Transat Tours Canada Inc, 2007 SCC 20 (CanLII), [2007] 1 SCR 867 [Impulsora Turistica] at para 6; Barrick Gold Corporation v Lopehandia et al, 2004 CanLII 12938 (ON CA), [2004] OJ No 2329 (ONCA) [Barrick Gold] at paras 73-77; Equustek, above, at paras 81-99…

[82]           The jurisprudence is clear that courts must exercise restraint in granting remedies that have international ramifications. That said, in some circumstances, courts do issue extraterritorial orders where there is a “real and substantial connnection” between the organization’s activities and Canada: Equustek, above, at paras 51-56.

[83]           The OPCC has presented considerable evidence as to the nature of the respondent’s enterprise based in Romania, and the degree to which it can be said to do business in Canada. As mentioned above, the content of Globe24h.com that is at issue is Canadian court and tribunal decisions. The OPCC’s evidence demonstrates that these decisions containing personal information were deliberately downloaded by the respondent from Canadian legal websites, such as CanLII, and republished on Globe24h.com. Moreover, the respondent has made a profit from Canadians by requiring them to pay a fee to have their personal information removed from the website.

[84]           As noted by the British Columbia Court of Appeal in Equustek, above, at paragraph 85, “[o]nce it is accepted that a court has in personam jurisdiction over a person, the fact that its order may affect activities in other jurisdictions is not a bar to it making an order.” Further, in the context of Internet abuses, courts of many other jurisdictions have found orders that have international effects to be necessary: Equustek, above, at para 95, citing APC v Auchan Telecom, 11/60013, Judgment (28 November 2013) (Tribunal de Grand Instance de Paris); McKeogh v Doe (Irish High Court, case no. 20121254P); Mosley v Google, 11/07970, Judgment (6 November 2013) (Tribunal de Grand Instance de Paris); and ECJ Google Spain SL, Google Inc v Agencia Espanola de Protecciób de Datos, Mario Costeja González, C-131/12 [2014], CURIA.

[85]           I was concerned about the enforceability of any order against the respondent as he and his server are not physically present in Canada. However, having considered the matter I am satisfied that the issuance of a corrective order in Canada may assist the applicant in pursuing his remedies in Romania. Moreover, as argued by the Commissioner, it may assist in persuading the operators of search engines to de-index the pages carried by the respondent web site.

[86]           Paragraph 16(a) of PIPEDA does authorize this Court to grant a corrective order requiring the respondent to correct his practices to comply with sections 5 to 10 of that legislation. Having reviewed the relevant authorities and having found that the underlying dispute is within the jurisdiction of this Court, I do not find that there is either a jurisdictional or a practical bar to granting a corrective order with extraterritorial effects.

The court was also asked to grant declaratory relief that the respondent had contravened PIPEDA, combined with a corrective order, that would allow the applicant and other complainants to submit a request to Google or other search engines to remove links to decisions on Globe24h.com from their search results. The OPCC contended that this may be the most practical and effective way of mitigating the harm caused to individuals since the respondent is located in Romania with no known assets. The court agreed and made an order that transcended the complaint before it to cover all decisions containing personal information published by Canadian courts and tribunals on the website. After referring to other cases decided under PIPEDA and the Charter the court stated:

[95]           These cases demonstrate that remedies may transcend the particular circumstances of an applicant where it has been established that an organization’s practices are deficient. In such cases, broadly crafted remedies were required in order to ensure that the organization’s practices going forward did not result in further violations of constitutional and quasi-constitutional rights.

[96]           The request for a systemic remedy in the present matter is supportable because the evidence demonstrates that the effects of the respondent’s actions are not confined to the single applicant named in this application. The OPCC has received a total of 49 complaints relating to Globe24h.com. Moreover, affidavit evidence filed by the OPCC demonstrates that over 150 complaints have been received by CanLII regarding personal information found on Globe24h.com. As a result, I agree that the circumstances of this case justify a broadly crafted corrective order pursuant to paragraph 16(a) of PIPEDA.

The Judgment of the court, reproduced below, ordered, among other things, the Romanian operator of the foreign website to remove all Canadian court and tribunal decisions containing personal information from the globe24h.com website and to take steps to remove them from caches of search engines as well.

THIS COURT’S JUDGMENT is that:

  1. It is declared that the Respondent, Sebastian Radulescu, contravened the Personal Information Protection and Electronics Documents Act, SC 2000, c 5 by collecting, using and disclosing on his website, www.Globe24h.com (“Globe24h.com”), personal information contained in Canadian court and tribunal decisions for inappropriate purposes and without the consent of the individuals concerned;
  2. The Respondent, Sebastian Radulescu, shall remove all Canadian court and tribunal decisions containing personal information from Globe24h.com and take the necessary steps to remove these decisions from search engines caches;
  3. The Respondent, Sebastian Radulescu, shall refrain from further copying and republishing Canadian court and tribunal decisions containing personal information in a manner that contravenes the Personal Information and Electronic Documents Act, SC 2000, c 5

As can be seen, the order was not limited to removing access to the personal information to Canadians or to searches from IP addresses in Canada. Nor was the order to remove the decisions from search engines limited to any country domain e.g., google.ca or to search engines that make the decisions available only to Canadians. In this regard, the decision is consistent with the interpretation of France’s data protection authority, the CNIL, which fined Google € 100,000  for not removing personal information from all of its search engines after being ordered to remove information about a Spanish citizen in Google Spain SL, Google Inc v Agencia Espanola de Protecciób de Datos, Mario Costeja González, C-131/12 [2014]. It is also consistent with the decision of the EU Article 29 Working Party Guideline which considered, amongst other things, the appropriate territorial scope of de-indexing orders against search engines.

The decision is also consonant with rulings by other courts that have ordered online service providers to remove or disable access to personal information made available over the Internet. For example, courts in France and Germany ordered Google to de-index websites that published personal information violating Max Mosley’s privacy rights. The Court of Justice of the European Union in the Google Spain case referred to above, also ordered Google to de-index information about an individual in the “right to be forgotten” case. The desirability of search engines de-indexing websites to help enforce privacy injunctions was recently also endorsed by the UK Supreme Court in the PJS case.

Most recently, the Irish Court of Appeal in CG v Facebook Ireland Limited [2016] NICA 42 (21 December, 2016) affirmed an injunction ordering Facebook to remove a site posted on Facebook that was used to harass an individual and which involved the misuse of private information. For good summaries of that case, see, Lorna Woods When is Facebook liable for illegal content under the E-commerce Directive? CG v. Facebook in the Northern Ireland courts, Aidan Wills, The Facebook Ireland cases: Intermediary Liability and defences under the E-Commerce Regulations (Part 1, the Judgments )The Facebook Ireland cases: Intermediary Liability and Defences under the E-Commerce Regulations (Part 2).

The decision demonstrates that Canadian courts consider privacy to be an important right and are willing to fashion remedies to ensure these statutory rights can be vindicated online. It also confirms the court’s jurisdiction to make global take down orders against foreign operators of foreign websites to protect privacy. The court’s ruling that Canada’s privacy law PIPEDA can be violated by publishing materials that are lawfully published in a more limited way on another website is also consistent with the Google Spain “right to be forgotten” case and suggests that such a remedy may be available in Canada as well in certain circumstances such as where personal information is made available online for a purpose that a reasonable person would not consider to be appropriate.

*Last updated February 2, 2017

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