Canadian privacy law (PIPEDA) applies extraterritorially, Federal Court of Canada holds

On January 30, 2017, the Federal Court of Canada found, a Romanian based website and its sole owner and operator, in violation of the Personal Information Protection and Electronic Documents Act (PIPEDA).

By way of background, the Romanian based website indexed and reposted Canadian court and tribunal decisions that were also available on Canadian legal websites.

Other Canadian legal websites generally are not indexed and a person seeking information must go directly to each site and conduct a search with the names of the parties, the style of cause and/or the citation for the decision to obtain the content. permitted the republished decisions to be located via third party search engines such as Google. The decision containing an individual’s name would generally appear in search results when the individual’s name was searched on such search engines.

Several individuals lodged complains with the Privacy Commissioner of Canada with respect to the disclosure on search engines of sensitive personal information about them and/or their family members in relation to personal matters, in violation of the PIPEDA.

The matter reached the Federal Court of Canada, which had to consider issues of international comity and extraterritoriality in the digital age. In particular, the Canadian Court addressed two private international law issues:

  • whether PIPEDA applied to as a foreign organization. The Court concluded that PIPEDA can apply extraterritorially. In PIPEDA, there is no language expressly limiting its application to Canada. In the absence of a clear guidance from the statute, the Court can interpret it to apply to all circumstances in which  a “real and substantial link”exists. The Court deemed that in this case there was sufficient connection between the’s activities and Canada for Canadian law to apply. Even though the location of the website operator and host server is Romania, “when the 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.” In addition, the connession with Canada is evident. First, the content at issue relates to Canada. Second, the website directly targeted Canadians. Third, the impact of the website was felt by members of the Canadian public. Finally, the Court deemed the principle of comity not offended. was also fined by the Romanian Data Protection Authority and the Romanians were cooperating with the privacy prosecution; and
  • whether the Court could grant relief that applied outside of Canada. The Court found that PIPEDA does authorize the issuance of a corrective order requiring respondent’s correction of practices to comply with PIPEDA itself. The Court granted an injunctive relief with extraterritorial effect to remedy the violation of PIPEDA.  The Court noted that “[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.”

The parties did not appeal the decision

In A.T. v. is available at…   Open PDF

For more information, contact Francesca Giannoni-Crystal, Federica Romanelli.

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