Another Canadian Decision Reaches Outside Canada
By Richard Stobbe
This fascinating Ontario case deals with an Alberta-based individual who complained of certain material that was re-published on the website Globe24h.com based in Romania. The server that hosted the website was located in Romania. The material in question was essentially a re-publication of certain publicly available Canadian court and tribunal decisions.
The Alberta individual complained that this conduct – the re-publication of a Canadian tribunal decision on a foreign server – was a breach of his privacy rights since he was named personally in this tribunal decision.
So, let’s get this straight, this is a privacy-based complaint relating to republication in public of a publicly available decision?
Yes, you heard that right. This Romanian site scraped decisions from Canadian court and tribunal websites (information that was already online) and made this content searchable on the internet (making it …available online).
This is an interesting decision, and we’ll just review two elements:
The first issue was whether Canadian privacy laws (such as PIPEDA ) have extraterritorial application to Globe24h.com as a foreign-based organization. On this point, the Ontario court, citing a range of past decisions (including the Google v. Equustek decision which is currently being appealed to the Supreme Court of Canada) said:
“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),  2 SCR 178 at p 208 [Emphasis added]
Secondly, the Ontario court reviewed whether the Romanian business was engaged in “commercial activities” (since that is an element of PIPEDA) . The court noted the Romanian site “was seeking payment for the removal of the personal information from the website. The fees solicited for doingdoing so varied widely. Moreover, if payment was made with respect to removal of one version of the decision, additional payments could be demanded for removal of other versions of the same information. This included, for example, the translation of the same decision in a Federal Court proceeding or earlier rulings in the same case.”
The Romanian site made a business out of removing data from this content, but the court’s conclusion that “The evidence leads to the conclusion that the respondent was running a profit-making scheme to exploit the online publication of Canadian court and tribunal decisions containing personal information.” [Emphasis added] – in a general sense, that statement could just as easily apply to Google or any of the commercial legal databases which are marketed to lawyers.
The court concluded that it could take jurisdiction over the Romanian website, and ordered the foreign party to take-down the offending content.
This decision represent another reach by a Canadian court to takedown content that has implications outside the borders of Canada. From the context, it is likely that this decision is going to stand, since the respondent did not contest this lawsuit. The issue of extra-terrtorial reach of Canadian courts in the internet context is going to be overtaken by the pending Supreme Court decision in Equustek. Stay tuned.
Calgary – 07:00 MT