A.T. v. Globe24h.com

A.T. v. Globe24h.com
Court (s) Database
Federal Court Decisions
Date
2017-01-30
Neutral citation
2017 FC 114
File numbers
T-1248-15
Notes
A correction was made on December 7, 2017.
Decision Content
Date: 20170130
Docket: T-1248-15
Citation: 2017 FC 114
Ottawa, Ontario, January 30, 2017
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
A.T.
Applicant
and
GLOBE24H.COM AND SEBASTIAN RADULESCU
Respondents
and
THE PRIVACY COMMISSIONER OF CANADA
Added Respondent
JUDGMENT AND REASONS
I. INTRODUCTION
[1] This de novo application under section 14 of the Personal Information Protection and Electronic Documents Act, SC 2000, c 5 [PIPEDA or the Act] raises questions about the open courts principle, international comity, and extraterritoriality in a digital age.
[2] The application stems from a Report of Findings dated June 5, 2015, prepared by the Office of the Privacy Commissioner of Canada (OPCC) wherein the OPCC determined that the applicant’s complaints against the Romania based respondents, Sebastian Radulescu and Globe24h.com, are well-founded.
[3] For the reasons that follow, the application will be granted and judgment rendered in favour of the applicant.
II. BACKGROUND
A. The parties
[4] The applicant, A.T., resides in Calgary, Alberta. He is originally from Romania and continues to have family there. At his request, and having considered the open court principle, the Court has agreed to substitute initials for his name to offer a measure of protection of his identity. His full name appears in Court documents served on the respondents in this matter but will not appear in the public online version of this decision.
[5] The respondent Sebastian Radulescu is the sole owner and operator of Globe24h.com, a Romanian-based website that republishes public documents from a number of countries, particularly Canada. While Globe24h.com has also been named as a respondent in this application, there is no evidence in the record that the website is a separate legal entity or that anyone other than Mr. Radulescu controls the website. I will refer to Mr. Radulescu and Globe24h.com collectively as the respondent.
[6] On October 30, 2015, the respondent was served with the Notice of Application and supporting materials pursuant to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (The Hague Convention). The respondent has not filed a notice of appearance under Rule 305 of the Federal Courts Rules, SOR/98-106 [FCR], and did not participate in this proceeding. Upon being satisfied that the respondent was given notice of the date and place of the hearing, the Court proceeded in the absence of the respondent in accordance with Rule 38 of the FCR.
[7] The Privacy Commissioner of Canada (the Commissioner), appointed under section 53 of the Privacy Act, RSC 1985, c P-2, is assigned responsibilities under PIPEDA including the investigation of complaints under section 12. On March 15, 2016, the Commissioner’s motion to appear as a party to this application was granted by the Case Management Judge, Roger R. Lafreniére. The Commissioner participated as an added respondent, filed documentary evidence and submitted written and oral representations. I will refer to the added respondent as the Commissioner and to his office as the OPCC.
[8] While no responding record was filed by Mr. Radulescu or Globe24h.com, the record submitted by the Commissioner contains communications from Mr. Radulescu in which he sets out several positions regarding the complaint against him and his website. In those communications, Mr. Radulescu displays some familiarity with Canadian law, in particular PIPEDA, and with the OPCC complaint process. He also demonstrates awareness of Canadian media reports about the controversy which his website has generated. There is no indication that the respondent was not aware that he could contest the application should he have chosen to do so.
B. Complaints to the OPCC
[9] The respondent operates Globe24h.com from Constanta, Romania. The server that hosts the website is also located in Romania. The OPCC tendered extensive evidence about the respondent’s activities and complaints from Canadian citizens and residents with respect to information disclosed on the respondent’s website.
[10] In July 2013, Globe24h.com began republishing Canadian court and tribunal decisions that are also available on Canadian legal websites such as CanLII.org. The difference between these other websites and Globe24h.com is that the respondent has permitted the decisions that are republished on his website to be located via third party search engines such as Google. Moreover, because decisions on Globe24h.com are indexed by search engines, a decision containing an individual’s name will generally appear in search results when the individual’s name is searched on such search engines.
[11] Notably, the content of the Canadian legal websites is generally not indexed and a person seeking such 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.
[12] In October 2013, the OPCC began receiving complaints from individuals alleging that links to Canadian court and tribunal decisions containing their personal information were appearing prominently in search results when their names were entered in common search engines. Between October 2013 and June 2015, the OPCC received a total of 38 complaints relating to Globe24h.com. From June 2015 to the date of filing of the OPCC’s record, the OPCC had received a further 11 complaints, with the most recent complaint being filed in April 2016. The OPCC investigated complaints from 27 individuals, including the applicant. The website of the Canadian Legal Information Institute (CanLII) had also received over 150 complaints regarding Globe24h.com prior to April 2016.
[13] The complainants alleged that the decisions posted on Globe24h.com contained sensitive personal information about them and/or their family members in relation to personal matters such as divorce proceedings, immigration matters, health issues and personal bankruptcies. For example, one of the complaints concerned the judicial review in this Court of an Immigration and Refugee Board decision relating to a HIV positive individual sponsored for admission to Canada by her husband. There are many other examples among the complaints filed as evidence by the OPCC of highly sensitive personal information discussed in the judgments and rulings posted on Globe24h.com.
[14] According to the OPCC, the complainants generally understood that the decisions would be published somewhere to maintain a record of the proceedings and to assist the courts, legal profession and public in understanding the development and application of the law. However, they did not understand why the decisions would appear as a result of a casual search on a search engine such as Google. Such casual searches could be conducted by members of their families, employers or neighbours who would have no prior knowledge of the sensitive information. Examples provided included the risk of children, students or co-workers coming across information of a highly personal nature.
[15] The complainants particularly objected to the fact that the respondent was seeking payment for the removal of the personal information from the website. The fees solicited for doing 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.
[16] In reply to such complaints, the respondent offered a “free” removal service. However, this required a request in writing and could take 180 days or more. Further, in order to have their personal information removed from the website for free, individuals were asked to provide further personal information to Globe24h.com in a “Request Form”. And the requestors were threatened with referral to prosecution authorities if the respondent suspected that fraud was involved. In contrast, payment for removal could be easily transferred through an online payment service, without providing any additional information. In other words, removal was expedited if the requestor was willing to pay but delayed and obstructed if no payment was made.
[17] One exhibit tendered in evidence concerned a service styled as “reputation.ca” which claimed to be able to remove embarrassing information from Globe24h.com for a fee of $1,500. While there is no evidence linking the respondent to this site, this exhibit demonstrates the impact of the respondent’s activities.
[18] 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.
C. The facts pertaining to the applicant
[19] The applicant was a party in labour relations proceedings involving his former employer. In June 2014, he discovered while using the Google search engine that an Alberta Labour Board decision concerning his case had been republished through Globe24h.com.
[20] PIPEDA defines “personal information” very broadly in section 2 as information about an identifiable individual. The applicant was concerned that the personal information in the labour relations proceedings, easily accessible through Google or other online search engine, would affect his future employment prospects. Although he is not certain that this has happened, he believes that it occurred in at least one instance when a prospective employer chose not to make him an offer.
[21] On June 13, 2014, the applicant contacted Globe24h.com and requested that his personal information be removed. He was told by the respondent that he would have to pay a fee to have that done.
[22] On June 14, 2014, the applicant filed a complaint against Globe24h.com under PIPEDA. The Commissioner’s investigation, completed in June 2015, concluded that the applicant’s complaint was well-founded. The Commissioner informed the applicant of his right to pursue this matter in this Court under section 14 of PIPEDA. He did so by Notice of Application filed on July 27, 2015. An Amended Notice of Application was filed on August 28, 2015.
[23] The applicant understands that the information pertaining to his labour relations dispute continues to be accessible through a Canadian-based website. He informed the Court during the hearing that he believes that he requested a confidentiality order before the Labour Board but was advised that it would require the consent of the employer, which was not provided. The essence of the applicant’s complaint is not with the publication of the decision by the Board but with the ease of accessing the information about his case through online search engines.
[24] The applicant also pursued a complaint through the Romanian National Supervisory Authority for Personal Data Processing (RNSAPDP), the Romanian counterpart to the OPCC. In October 2014, the RNSAPDP fined the respondent for contravening Romanian data protection laws. The respondent has appealed this fine to a Romanian court. As of the date of hearing of this application, the Court was informed, those proceedings are ongoing.
[25] The applicant advised this Court at the hearing that he and his family in Romania have received verbal threats for pursuing the complaint. For that reason, and because of his concern that the publication of this decision would again expose his personal information to public attention, the applicant requested that the Court order that his identity be protected.
[26] As indicated above, I have acceded to his request by substituting his initials for his name in the style of cause. In my view, this strikes an appropriate balance between the open court principle and the need to protect the applicant’s and his family’s personal safety: A.B. v Canada (Minister of Citizenship and Immigration), 2009 FC 325, [2009] FCJ No 386 at para 5; E.F. v Canada (Minister of Citizenship and Immigration), 2015 FC 842, [2015] FCJ No 861 at para 8.
[27] The applicant represented himself on this matter.
D. The OPCC’s Investigation of Globe24h.com
[28] In May 2014, the OPCC commenced an investigation of Globe24h.com and Mr. Radulescu under subsection 12(1) of PIPEDA. During the course of its investigation, the OPCC communicated with the respondent and obtained detailed information from Mr. Radulescu.
[29] The respondent acknowledged collecting and republishing decisions from (1) judicial and administrative tribunal websites, (2) the CanLII website, and (3) the website of the Société Québécoise d’Information Juridique (SOQUIJ). The respondent also acknowledged republishing the decisions without the knowledge and consent of concerned individuals or the tribunals and courts and that he was allowing the decisions to be indexed by search engines. However, he stated that consent was not required because the website’s purpose is exclusively journalistic and the content was already publicly available.
[30] In late 2012, CanLII detected bulk downloading of decisions from its website from IP addresses registered with an internet service provider named “RCS & RDS”, based in Romania. CanLII subsequently blocked access to its website from all users of RCS & RDS. In December 2013, CanLII received complaints that decisions posted on its website were searchable through Google using the names of litigants. CanLII’s Chief Editor examined the content patterns published on Globe24h.com and determined that the decisions had been downloaded in bulk from CanLII.
[31] In January 2014, CanLII’s Chief Editor contacted the respondent to inform it of a judicially ordered publication ban with respect to a decision reproduced on his website which required anonymity of the parties. Globe24h.com advised CanLII about the procedure to request content removal and the applicable fee. As of May 2016, the decision remained on the respondent’s website in its original form, and not in conformity with the publication ban.
[32] Throughout the OPCC’s investigation the respondent maintained that the purpose of Globe24h.com was to “disseminate public information, especially government information, to a wider audience internationally”.
[33] The respondent stated that the removal fee had been introduced to limit the volume of anonymous requests received by email and to prevent fraudulent removal requests. The respondent’s process for removing personal information changed a number of times during the OPCC’s investigation in what might be interpreted to be attempts to hamper the process.
[34] Initially, the respondent advertised that individuals could pay a 19 euro fee for “express” 72-hour removal. Individuals could also have their personal information removed for free; however, that process took 180 days and up to one year for the information to be removed from search engine indices. In early 2014, the respondent began to offer a faster 12-hour removal for a 120 euro fee. By May 2014, the time period for a free removal process was shortened to 15 days. However, the request had to be sent by mail to Romania and it had to include information such as the requester’s full name and address, a copy of an identification document, and a copy of the decision that identified the exact information to be removed. In contrast, for the paid removal service, an individual only had to send an email identifying the decision and the redaction would be done within a few days once the payment had been transferred.
[35] In July 2014, the respondent informed the OPCC that there was no longer a fee for removing personal information from the website. However, in October 2014, the OPCC received information from one of the complainants that Mr. Radulescu had offered, instead of anonymizing decisions, to remove full copies of decisions from the website for the price of 200 euros per decision.
[36] Some complainants paid to have their personal information removed but then discovered that there were other decisions, or versions of the same decision, concerning them still on the website. However, the fee that they paid only covered a single decision, according to Globe24h.com and further payments would be demanded for the other decisions or versions of decisions.
[37] The OPCC also found that the respondent’s website displayed advertisements alongside the decisions and sold space on the website to advertisers. Some of these appear to have been links to pornographic websites. On June 12, 2016, the respondent informed the Commissioner that as of June 10, 2016, he has removed all advertising from Globe24h.com. Therefore, he claimed, Globe24h’s activities are now entirely not-for-profit and that he derives no revenue from the website.
[38] During the course of the investigation, the respondent indicated that Globe24h.com’s collection of Canadian decisions had not been updated since 2013. However, the Commissioner found that the website contains decisions from 2014 and 2015.
[39] While the investigation was ongoing, the OPCC requested Mr. Radulescu to remove the personal information of complainants from the website as an interim measure. Initially, the respondent complied and indicated that he had redacted the complainants’ personal information from the decisions, although the decisions remained on the site. However, in November 2014, the respondent indicated that he would no longer redact decisions at the OPCC’s request and that individuals had to submit a request form along with supporting documentation to Globe24h.com.
E. The OPCC’s Final Report of Findings
[40] In January 2015, the OPCC issued a preliminary report of investigation to the respondent concluding that PIPEDA applied to the respondent’s activities. The OPCC further concluded that the respondent’s activities were not appropriate purposes within the meaning of subsection 5(3) of PIPEDA.
[41] On June 5, 2015, the Commissioner issued its final report of findings with respect to the 27 complaints that he investigated. The OPCC’s final conclusions can be summarized as follows:
Globe24h.com is an organization that collects, uses and discloses personal information in the course of commercial activities within the meaning of PIPEDA;
PIPEDA can apply to Globe24h as a foreign-based organization because there is an established ‘real and substantial connection’ between the parties and/or the facts giving rise to the complaint in Canada;
The ‘journalistic purpose’ exception under paragraph 4(2)(c) of PIPEDA does not apply to the respondent’s activities because the underlying purpose of Globe24h is to generate revenue by incentivizing individuals to pay to have their personal information removed;
The underlying purpose of Globe24h – which is to make available Canadian court and tribunal decisions through search engines that allow the sensitive personal information of individuals to be found by happenstance – cannot be considered as appropriate from the perspective of a reasonable person under subsection 5(3) of PIPEDA; and,
The ‘publicly available information’ exception does not apply to Globe24h’s activities because the website’s purpose in allowing the decisions to be indexed by popular search engines is not “directly related” to the purpose for which the personal information appears in the record or document. Therefore, the exceptions to PIPEDA’s knowledge and consent requirements described under paragraphs 7(1)(d), 7(2)(c.1) and 7(3)(h.1) do not apply in this situation.
III. RELIEF SOUGHT
[42] The applicant seeks the following remedies:
a) an order for damages, including general, punitive, exemplary, discretionary and, including damages for the humiliation and distress suffered by the applicant;
b) an order that the respondent correct their practices and comply with sections 5 to 10 of PIPEDA;
c) an order that the respondent publish a notice of any of the actions taken or proposed to be taken to correct their practices so as to comply with PIPEDA;
d) an order for an injunction;
e) a declaration that the respondent contravened privacy legislation;
f) an order that the respondent delete from his website and servers all court and tribunal decisions that is republished containing personal information, and remove these decisions from search engines caches;
g) an order that the respondent is a vexatious litigant; and,
h) an order for costs, including on a solicitor-client and full indemnity basis.
[43] During the course of the hearing, the applicant acknowledged that a number of these proposed remedies would not be appropriate or available to him under the law. This is not a case, for example, for issuing a vexatious litigant order. Nor would costs on a solicitor-client and full indemnity basis be available to the applicant as he represented himself. The question of damages will be discussed further below.
[44] The OPCC proposed the following declaration and orders:
1. 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; and
4. The Respondent, Sebastian Radulescu, shall pay the Applicant damages in the amount of XXXX. [No amount proposed].
IV. RELEVANT LEGISLATION
[45] The relevant legislation is attached to these reasons as an annex (Annex ‘A’) to facilitate the reading of this decision.
V. ISSUES
[46] Having considered the issues raised by the applicant and Commissioner, I would frame them as follows:
Does PIPEDA have an extraterritorial application to Globe24h.com as a foreign-based organization?
Is the respondent’s purpose for collecting, using and disclosing personal information “appropriate” under paragraph 5(3) of PIPEDA?
Does the “publicly available” exception apply to the personal information republished on Globe24h.com under section 7 of PIPEDA?
What remedies should this Court grant under section 16 of PIPEDA?
VI. ANALYSIS
[47] These reasons will focus on the Commissioner’s submissions. The applicant represented himself in these proceedings with the assistance of the OPCC. His submissions were brief but on point and articulate and he provided a list of relevant jurisprudence for the Court’s assistance. In addition to his personal interests in the matter, he argued that the respondent’s activities have the potential of bringing the administration of justice into disrepute as individuals may now be discouraged from approaching the judicial system out of fear of having their personal information more widely accessible online.
A. Does PIPEDA have an extraterritorial application to Globe24h.com as a foreign based organization?
(1) The “real and substantial connection” test.
[48] The purpose of Part I of PIPEDA is to:
…establish, in an era in which technology increasingly facilitates the circulation and exchange of information, rules to govern the collection, use and disclosure of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances.
[49] PIPEDA was enacted in response to the 1980 Organization for Economic Co-operation and Development Guidelines on the Protection of Privacy and Transborder Flows of Personal Data. It was designed to be part of an international system to protect the privacy of individuals as reflected in the European Data Protection Directive adopted in October 1995. Among other elements, the European Directive included a provision that prevented the transmission of any personal information outside the European Union unless the recipient country had legislation in place that would offer similar protection. PIPEDA was intended to offer that protection in Canada thus avoiding the extraterritorial effect of the European Directive on Canada. Romania is bound by the European Directive. One question to be addressed is whether PIPEDA can apply to activities abroad that have an impact on persons resident in Canada.
[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 45, [2004] 2 SCR 427 at paras 54-63 [SOCAN] and the other authorities cited therein.
[51] In SOCAN, Justice Binnie reviewed the general principles in respect of the extraterritoriality of Canadian laws and concluded that the Canadian Copyright Act may apply to cross-border activities where there is a “real and substantial connection” with Canada:
54 While the Parliament of Canada, unlike the legislatures of the Provinces, has the legislative competence to enact laws having extraterritorial effect, it is presumed not to intend to do so, in the absence of clear words or necessary implication to the contrary. This is because “[i]n our modern world of easy travel and with the emergence of a global economic order, chaotic situations would often result if the principle of territorial jurisdiction were not, at least generally, respected”; see Tolofson v. Jensen, [1994] 3 S.C.R. 1022, at p. 1051, per La Forest J.
55 While the notion of comity among independent nation States lacks the constitutional status it enjoys among the provinces of the Canadian federation (Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, at p. 1098), and does not operate as a limitation on Parliament’s legislative competence, the courts nevertheless presume, in the absence of clear words to the contrary, that Parliament did not intend its legislation to receive extraterritorial application.
56 Copyright law respects the territorial principle, reflecting the implementation of a “web of interlinking international treaties” based on the principle of national treatment (see D. Vaver, Copyright Law (2000), at p. 14).
57 The applicability of our Copyright Act to communications that have international participants will depend on whether there is a sufficient connection between this country and the communication in question for Canada to apply its law consistent with the “principles of order and fairness . . . that ensure security of [cross-border] transactions with justice”; see Morguard Investments, supra, at p. 1097; see also Unifund Assurance Co. v. Insurance Corp. of British Columbia, [2003] 2 S.C.R. 63, 2003 SCC 40, at para. 56; Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at pp. 601-2.
58 Helpful guidance on the jurisdictional point is offered by La Forest J. in Libman v. The Queen, [1985] 2 S.C.R. 178. That case involved a fraudulent stock scheme. U.S. purchasers were solicited by telephone from Toronto, and their investment monies (which the Toronto accused caused to be routed through Central America) wound up in Canada. The accused contended that the crime, if any, had occurred in the United States, but La Forest J. took the view that “[t]his kind of thinking has, perhaps not altogether fairly, given rise to the reproach that a lawyer is a person who can look at a thing connected with another as not being so connected. For everyone knows that the transaction in the present case is both here and there” (p. 208 (emphasis added)). Speaking for the Court, he stated the relevant territorial principle as follows (at pp. 212-13):
I might summarize my approach to the limits of territoriality in this way. As I see it, all that is necessary to make an offence subject to the jurisdiction of our courts is that a significant portion of the activities constituting that offence took place in Canada. As it is put by modern academics, it is sufficient that there be a “real and substantial link” between an offence and this country . . . .
59 So also, in my view, a telecommunication from a foreign state to Canada, or a telecommunication from Canada to a foreign state, “is both here and there”. Receipt may be no less “significant” a connecting factor than the point of origin (not to mention the physical location of the host server, which may be in a third country). To the same effect, see Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626, at para. 52; Kitakufe v. Oloya, [1998] O.J. No. 2537 (QL) (Gen. Div.). In the factual situation at issue in Citron v. Zundel, supra, for example, the fact that the host server was located in California was scarcely conclusive in a situation where both the content provider (Zundel) and a major part of his target audience were located in Canada. The Zundel case was decided on grounds related to the provisions of the Canadian Human Rights Act , but for present purposes the object lesson of those facts is nevertheless instructive.
60 The “real and substantial connection” test was adopted and developed by this Court in Morguard Investments, supra, at pp. 1108-9; Hunt v. T&N plc, [1993] 4 S.C.R. 289, at pp. 325-26 and 328; and Tolofson, supra, at p. 1049. The test has been reaffirmed and applied more recently in cases such as Holt Cargo Systems Inc. v. ABC Containerline N.V. (Trustees of), [2001] 3 S.C.R. 907, 2001 SCC 90, at para. 71; Spar Aerospace Ltd. v. American Mobile Satellite Corp., [2002] 4 S.C.R. 205, 2002 SCC 78; Unifund, supra, at para. 54; and Beals v. Saldanha, [2003] 3 S.C.R. 416, 2003 SCC 72. From the outset, the real and substantial connection test has been viewed as an appropriate way to “prevent overreaching . . . and [to restrict] the exercise of jurisdiction over extraterritorial and transnational transactions” (La Forest J. in Tolofson, supra, at p. 1049). The test reflects the underlying reality of “the territorial limits of law under the international legal order” and respect for the legitimate actions of other states inherent in the principle of international comity (Tolofson, at p. 1047). A real and substantial connection to Canada is sufficient to support the application of our Copyright Act to international Internet transmissions in a way that will accord with international comity and be consistent with the objectives of order and fairness.
61 In terms of the Internet, relevant connecting factors would include the situs of the content provider, the host server, the intermediaries and the end user. The weight to be given to any particular factor will vary with the circumstances and the nature of the dispute.
62 Canada clearly has a significant interest in the flow of information in and out of the country. Canada regulates the reception of broadcasting signals in Canada wherever originated; see Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42. Our courts and tribunals regularly take jurisdiction in matters of civil liability arising out of foreign transmissions which are received and have their impact here; see WIC Premium Television Ltd. v. General Instrument Corp. (2000), 8 C.P.R. (4th) 1 (Alta. C.A.); Re World Stock Exchange (2000), 9 A.S.C.S. 658.
63 Generally speaking, this Court has recognized, as a sufficient “connection” for taking jurisdiction, situations where Canada is the country of transmission (Libman, supra) or the country of reception (Liberty Net, supra). This jurisdictional posture is consistent with international copyright practice.
[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, [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, [2014] FCJ No 1066 at paras 31-32 [Davydiuk]; Desjean v Intermix Media, Inc, [2006] FC 1395, [2007] 4 FCR 151 at para 42 [Desjean], aff’d 2007 FCA 365; Equustek Solutions Inc v Google Inc, 2015 BCCA 265, 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] 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, [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 27. 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 OPCC 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 complement rather than offend any action that may be taken in a Romanian court.
[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, [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.
B. The respondent