Ottawa lawyers v. Google

They claim the search engine’s results are violating publication bans, even when protected persons aren’t named in the case. How would that happen?

Two Ottawa lawyers have filed an $80-million class-action lawsuit against Google, claiming the search giant’s results are inadvertently revealing names protected by a publication ban.

A statement of claim submitted to Ontario Superior Court last month by Norman Mizobuchi and Michael Crystal, partners at Ottawa’s Spiteri & Ursulak LLP, alleges that Google is bringing up the names of persons protected under courts’ publication bans in related searches.

While the class-action suit is meant to encompass any party in Canada potentially affected by the phenomenon, the claim is submitted on behalf of a John Doe, a Vancouver resident whose name was protected under a ban when he faced criminal charges two years ago as a teenager.

The statement alleges that Doe was popping up as a related search in results about the court case, alongside articles that never even mentioned his name. Vice-versa, searches for Doe’s name would bring up stories about the case.

Mizobuchi and Crystal cite a 2017 investigation by the Ottawa Citizen which highlighted similar examples in Canada.

The claim asserts that Google failed to take necessary steps to prevent Doe’s name from being revealed in relation to his court case, and suggests that he and others in similar circumstances may have suffered damages as a result.

A similar question is being tackled by even higher courts in the country.

Earlier this month, the Federal Court of Canada was asked by the privacy commissioner to consider a complaint involving a man challenging Google on the “right to be forgotten,” claiming that the search engine was causing him direct harm by resurfacing outdated articles about his sexual orientation and a medical concern. On this case, the Canadian Press reports that Google argues that de-indexing web pages from its results would be unconstitutional.

Techopia reached out to Google to learn more about why incidents like Doe’s case might happen, but did not receive a response.

Instead, we spoke to Lindsay Kavanagh, senior digital strategist for Ottawa-based marketing agency seoplus+, to tell us why Google’s search function might be connecting the dots – even when the dots aren’t there.

“The algorithm that Google has is running too well.”

“The algorithm that Google has is running too well,” she says.

Google’s search results are populated by keywords, Kavanagh explains. When an article is posted it gets a number of keywords associated with it, even if those terms aren’t referenced in the article.

This process is also informed by Google users’ activities. If you were to search a few terms together and click through to an article, that article would become associated with those keywords.

Usually that process helps the algorithm to inform better search results. But in this case, if someone who knew John Doe’s connection to the case searched for it alongside his name, that act could be enough to link the two terms indefinitely.

“It's the way Google can help decide what the most relevant search result is for each query that people are searching,” Kavanagh says. “So it's really from the users that this change happens.”

For seoplus+, one of OBJ’s fastest-growing companies in 2017, staying up to date on Google’s ever-changing algorithm is part of the job. In order to keep its services sharp, its team has to know how to keep clients’ sites high on Google’s radar.

But managing Google results isn’t just about being found – sometimes it’s about keeping bad press away from searching eyes.

Kavanagh says there are some “black hat” ways to make sure scandals from a company’s past stays out of a search engine’s purview, but seoplus+ prefers to keep its work above board. It does so, primarily, by giving Google something else to talk about: a good PR campaign or promotional contest can go a long way in pushing positive results up and negative ones down.

“It's really just changing the conversation and pushing those search results down with good quality.”

Kavanagh says the idea that Google’s algorithm is finding what it shouldn’t be able to puts the company in an unusual situation. The tech giant has gotten so good at searching that it might have to manually make itself worse to comply with privacy demands.

“It's funny that Google might have to make adjustments to change the search results to not be so good because it is getting easier to find information.”

Google, she says, now faces a question: does the search engine value what can be found or what should?

– With files from the Canadian Press