shutterstock_204697267By Olivia Gile, University of Ottawa

The Federal Court recently interpreted the undefined exemption for “journalistic purposes” under the Personal Information Protection and Electronic Documents Act (“PIPEDA”, or the “Act”’). This exemption applies to organizations that collect, use or disclose personal information for journalistic purposes only. The courts applied the exemption narrowly, and only organizations that inform the public on matters of public interest may benefit from it.

The purpose of PIPEDA is to protect the circulation and exchange of personal information in Canada by facilitating the collection, use and disclosure of personal information only for purposes that a reasonable person would consider appropriate in the circumstances (Subsection 5(3)).

Legislative exemptions to reasonable collection, use, and exchange

Section 4 of the Act provides three exemptions to the reasonable collection, use and exchange of personal information. Part I of the Act, dealing with protection of personal information, does not apply to:

  1. any government institution to which the Privacy Act applies;
  2. any individual who collects, uses or discloses personal information “for personal or domestic purposes”; or
  3. any organization that collects, uses, or discloses personal information “for journalistic, artistic or literary purposes and […] not […] for any other purpose”.

According to PIPEDA, what is an exemption for “journalistic purposes”?

The exemption for journalistic use, codified in Paragraph 4(2)(c), applies to organizations that collect, use or disclose personal information for journalistic purposes. However, the Act does not define “journalistic purposes”.

What does the common law say?

Common law fills this gap. Recently, the Federal Court ruled on the exemption for the collection, use, or disclosure of personal information for journalistic purposes in A.T. v Globe24h.com, 2017 FC 114.

i.  The Facts

In this case, a Romanian company (“Respondent”), claimed that it should benefit from the exemption because its website, Globe24h.com, had been established for journalistic purposes only, and that its purpose was to “to make law accessible for free on the Internet.”[Translation]

An individual (the “Applicant”) filed a complaint with the Office of the Privacy Commissioner of Canada (the “OPCC”), after discovering that personal information appearing in proceedings that he had brought against his employer had been made easily accessible online because Respondent had republished it and allowed it to be indexed by search engines. Respondent had downloaded and republished numerous legal decisions from non-indexed Canadian databases including CanLII and SOQUIJ. The company made these decisions readily available on the Internet and had made a business of agreeing to remove the personal information contained in the decisions in exchange for payment of a fee.

ii.  Analysis and Application

The court rejected Respondent’s claim. It upheld the Canadian Association of Journalists’ definition suggested by the OPCC, whereby an activity should qualify as “journalism” only where:

  • its purpose is to inform the public on issues of interest;
  • it involves an element of original production; and
  • it is calculated to provide an accurate and fair description of facts, opinion and debate regarding a situation.

Simply making information publicly available is insufficient. The court applied the narrow definition of the Court of Appeal of Alberta whereby “not every piece of information posted on the Internet qualifies” as journalism. The Court found that Globe24h’s primary purpose could not be considered journalistic, as there was no evidence that Respondent’s intention was to inform the public on matters of public interest. Respondent’s activities were deemed primarily commercial in nature.

An activity also fails to qualify as “journalism” if journalism is only one of multiple purposes for the use of the information: the Act clearlys tates that the exemption applies only to cases where the information is used for journalistic purposes and not for any other purpose.

Public Interest

This Federal Court decision demonstrates that PIPEDA exemptions are limited and specific; they will be interpreted narrowly to afford maximum protection to Canadians’ personal information. This stems from the OPCC’s desire to implement solutions to protect and enhance reputational privacy and to reformulate PIPEDA in light of technological advances and globalization.