03/02/2020 2017 FC 114 (CanLII) | CanLII [72] Even if the respondent’s activities could be considered journalistic in part, the exemption under paragraph 4(2)(c) only applies where the information is collected, used or disclosed exclusively for journalistic purposes. It is clear from the record that Globe24h.com’s purposes extend beyond journalism. D. Is the respondent’s purpose for collecting, using and disclosing personal information “appropriate” under subsection 5(3) of PIPEDA? [73] Subsection 5(3) creates an overarching requirement that an organization “collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances.” This must also be read in light of the underlying purpose of Part 1 of PIPEDA provided by section 3. [74] In considering whether an organization complies with subsection 5(3) of PIPEDA, this Court has in the past considered whether (1) the collection, use or disclosure of personal information is directed to a bona fide business interest, and (2) whether the loss of privacy is proportional to any benefit gained: Turner v Telus Communications Inc, 2005 FC 1601, [2005] FCJ No 1981 at para 48, aff’d 2007 FCA 21. [75] I agree with the OPCC that a reasonable person would not consider the respondent to have a bona fide business interest. In making this argument, the Commissioner relies on the Canadian Judicial Council’s (CJC) Model Policy for Access to Court Records in Canada (Model Policy) and the OPCC’s own guidance document to federal administrative tribunals. The CJC Model Policy discourages decisions that are published online to be indexed by search engines as this would prevent information from being available when the purpose of the search is not to find court records. The policy recognizes that a balance must be struck between the open courts principle and increasing online access to court records where the privacy and security of participants in judicial proceedings will be at issue. [76] The CJC has struck a balance by advising courts to prevent judgments from being discovered unintentionally through search engines. To this end, the CJC has recommended that judgments published online should not be indexed by search engines. The OPCC notes that CanLII and other court and tribunal websites generally follow the CJC’s Model Policy and prevent their decisions from being indexed by search engines through web robot exclusion protocols and other means. Indeed, the Federal Court has taken such measures to prevent our decisions from being indexed. That does not bar anyone from visiting the Federal Court website and conducting a name search. But it does prevent the cases from being listed in a casual web search. The respondent’s actions result in needless exposure of sensitive personal information of participants in the justice system via search engines. E. Does the “publicly available” exception apply to the personal information republished on Globe24h.com under section 7 of PIPEDA? [77] The OPCC submits that section 7 must be read in conjunction with paragraph 1(d) of the Regulations Specifying Publicly Available Information, SOR/2001-7, which specify that records or documents of judicial or quasi-judicial bodies are to be considered publicly available provided certain conditions are met: 1 The following information and classes of information are specified for the purposes of paragraphs 7(1)(d), (2)(c.1) and (3)(h.1) of [PIPEDA]: […] (d) personal information that appears in a record or document of a judicial or quasi-judicial body, that is available to be public, where the collection, use and disclosure of the personal information relate directly to the purpose for which the information appears in the record or document.” [78] The Court agrees with the Commissioner that the respondent’s purposes in republishing decisions do not “relate directly” to the purpose for which the personal information appears in the decisions. The respondent’s purposes are unrelated to the open courts principle. Instead, the respondent’s website serves to undermine the administration of justice by potentially causing harm to participants in the justice system. As the applicant has argued, the publication of such information on an indexed website may well discourage people from accessing the justice system. [79] In the Court’s view, there is no reasonable basis on which the respondent could rely on the “publicly available” exception under section 7 of PIPEDA. https://www.canlii.org/en/ca/fct/doc/2017/2017fc114/2017fc114.html 12/21