Operator of website that shamed debtors for profit takes down website after OPC takes the matter to Federal Court

PIPEDA Report of Findings #2017-007

August 8, 2017

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Complaint

The complainants alleged that Public Executions Inc., the operator of the publicexecutions.ca website, was disclosing their personal information without consent.

Summary of Investigation

The website stated that it was dedicated to “exposing judgment debtors on the web.” For a fee, anyone trying to collect a court-ordered debt payment could post details of their judgment on the website, such as the amount owing and the debtor’s name. The creditor could also include additional personal information, such as the debtor’s address and photograph. Individuals listed on the website could be searched by name. The complainants’ listings on the site were also among the top results when we performed an online search for their names using the Google search engine.

The complainants did not dispute the accuracy of the information but alleged the website breached their privacy rights under PIPEDA by publishing their personal information to, in effect, “name and shame” them into paying the debts.

The owner of the website submitted that PIPEDA did not apply because the website did not have a “vendor-consumer” relationship with debtors and its disclosure of individuals’ personal information was not in relation to a “commercial activity”. He also argued that the website was a form of journalism and thus exempt from PIPEDA’s consent requirements. He further described the website as no different from government websites that encourage the public to help track down people who have defaulted on court-ordered family support payments.

During our investigation, we were informed that a complaint about the website had been filed with the Ontario Ministry of Government and Consumer Services, which subsequently ordered the website to register as a “consumer reporting agency” and abide by the requirements of Ontario’s Consumer Reporting Act.

Outcome

In this case, it is clear that PIPEDA is applicable. The website was disclosing the complainants’ personal information in exchange for a fee from a third party (the judgment creditor), which is considered a commercial activity under PIPEDA. The Act applies to organizations that collect, use or disclose personal information in the course of commercial activities.

As for the claim that the site was a form of journalism and thus exempt from consent under PIPEDA, we did not agree. We found that the primary purpose of the website was not journalistic. Our analysis was guided by a recent Federal Court decision in A.T. v. Globe24h, which noted, among other criteria, that an activity should involve an “element of original production” to be considered journalism. Upon examining the content of the site, we found that there was nothing original about the information on the site; it simply posts content provided by others.

Our office’s findings also took into account the determination of the Ontario Ministry of Government and Consumer Services that the website operated as a “consumer reporting agency” under Ontario’s Consumer Reporting Act. As such, its use and disclosure of information relating to debts owing by individuals was strictly regulated. Under this legislation, there is a specific prohibition on publishing a debtor’s failure to pay except in specified circumstances. Collection agencies are similarly strictly regulated. In this case, the website was disclosing personal information to the world at large. Accordingly, our office found that, contrary to what is required by subsection 5(3) of PIPEDA, a reasonable person would not consider it appropriate for an organization to publicize broadly this information for financial gain and for the purpose of coercing debtors into paying their debts, especially given the availability of legal mechanisms to enforce judgments.

In our Preliminary Report of Investigation, we recommended that all information relating to debtors be deleted from the website and that the owner also have the information removed from search engine caches. The website owner told us that he did not accept our recommendations, and would not act on them.

Accordingly, our office determined the complaints to be well-founded. Because of the unresolved nature of this investigation, we considered our next steps in pursuing this matter, in accordance with our authorities under PIPEDA.

Update: Our office initiated legal proceedings with the Federal Court of Canada on November 16, 2017 by way of an Application pursuant to section 15 of PIPEDA, seeking a court order requiring the website operator to stop publishing information relating to debtors online. Shortly afterwards, the operator of the website advised our office that he had taken down the website and indicated that he had no current plans to reinstate it. As a result, on December 22, 2017, our office discontinued its application with the Federal Court. We advised the operator that we would continue to monitor the website and that should it reappear, we reserved the right to reinstitute or commence a new application with the Federal Court.

Report of Findings

Complaints under the Personal Information Protection and Electronic Documents Act (“PIPEDA”)

1. The complainants allege that Public Executions Inc. (“the respondent”) is disclosing their personal information without consent on publicexecutions.ca (“the website”), a publicly-searchable database of judgment debtors operated by the respondent. Specifically, the complainants informed our Office that their personal information is being made widely available on the internet by the respondent for the purpose of shaming them in to paying outstanding debts. The personal information on the website generally includes name, address and information regarding unpaid debts arising from small claims court judgments.

Summary of Investigation

Background

2. The website allows judgment creditors, for a fee,^{Footnote 1} to post details regarding unpaid judgment debts and judgment debtors. Judgment creditors create new postings by entering certain basic information such as the court file number, the date of the judgment, the amount of the debt that remains unpaid and the identity of the debtor.
3. Judgment creditors may also add additional information about the debtor they consider relevant, including their home address, date of birth, occupation and photographs of the debtor. In one example we reviewed, there was information about the type of car that a debtor drives along with the debtor’s photograph, and, in another case, serious allegations about a debtor’s business practices and their personal character (e.g. “he likes to talk about his adventures when looking you in the eye, shaking your hand, and stealing your money”).
4. Once the required information has been entered, the website creates a page exclusive to each judgment debtor. The page is searchable by the public via the website’s search engine as well as via popular search engines such as Google and Bing. For instance, a search for one complainant’s name in Google returns a link to the complainant’s page on the website as the top result. The same exercise for the second complainant returns the link as the eighth result. The website’s homepage also prominently features a map of Canada with pins representing the debtors dropped across the country; hovering over the pins reveals a debtor’s name, address, and their photograph, if one has been uploaded.
5. The website also encourages the public to provide “tips” with respect to debtors, and allows judgment creditors to offer rewards if the tip is used in a successful enforcement of a debt. To be eligible for a reward, a tip “must include sufficient information to identify an Asset of the Judgment Debtor”. Tips are also made public on the website. Under one complainant’s “debtor/defendant summary”, there is a section entitled “Tips About [the complainant]” which includes an article taken from an online legal magazine describing a previous court judgment concerning the complainant, but not involving the small claims court debts, as well as an entry stating that “[the complainant] and [the complainant’s spouse] are joint owners of [address] since 2008.”
6. The accuracy of information submitted by judgment creditors and “tipsters” is not verified by the respondent prior to publication. The respondent indicates on its website that it may request supporting evidence from a judgment creditor, but this is done only in the “unlikely event” that a judgment debtor contacts it and insists that a posting is false or unenforceable.^{Footnote 2}
7. The website indicates that judgment debts will be removed when the judgment has been paid in full or there is less than $200 remaining to be paid. A posting expires after six years, but may be extended for a further six years by the payment of the specified fee. The respondent also reserves the right to remove postings and tips at its discretion.
8. The respondent does not collect debts on behalf of judgment creditors but rather claims to increase the likelihood of collection by creditors by publicly exposing judgment debtors online. The top portion of the website contains the respondent’s brand along with the words “Dedicated to the enforcement of civil judgments in Canada” and “exposing judgment debtors on the web”. In particular, the website explicitly makes reference to the design of distinct URLs for each debt in order to make the judgment debtor highly visible on the internet (i.e., via search engines).
9. The following is an excerpt from the respondent’s mission statement, available on its website:

   An online registry of judgment debtors protects the public from those with a history of delinquency. In publishing the identities of judgment debtors we bring pressure to bear on what money cannot buy – a good reputation. To be exposed in this way is not just humiliating it’s bad for business.

   It is unacceptable that many judgments are abandoned because enforcement is difficult and expensive. Through crowdsourcing PublicExecutions.ca exponentially increases the number of people who are aware of each judgment and the players involved. Connecting and obtaining information in this way maintains every judgment’s potential.

10. In the Frequently Asked Questions (FAQ) section of the website, the respondent lists reasons why creditors should use its service, including that “[i]t serves notice to a Judgment Debtor that they can no longer hide” and that “[n]o one wants it known that they have an unpaid judgment against them.” A video on the website states that “every unpaid judgment deserves a public execution.”
11. The FAQ section of the website also speaks to compliance with PIPEDA:

    Is it OK to publish an individual’s personal information on the Internet? This website is careful to comply with all Canadian law regarding privacy. The purpose of this site is to collect debts owed to you, debts that are confirmed by an Order enforceable by a court in Canada. Under Canadian law it is permissible to disclose personal information for the purpose of collecting a debt owed by an individual (See; Personal Information Protection and Electronic Documents Act, SC 2000, c 5, section 7).[…]

12. The website lists an Ontario address on the contact page and the majority of the debtors appear to be based in Ontario.

Information from complainants

13. While the complainants did not challenge the accuracy of the information on the website, they maintained that the respondent is contravening their privacy rights under PIPEDA by publishing their personal information to “name and shame” them into paying the debts.
14. For instance, one complainant alleged that the publication of his home address as well as his spouse’s name has put his family at risk given that his work involved evicting problematic tenants and that he has had to seek alternate employment. He stated that his spouse is unconnected to the judgment debts against him. He also argued that the respondent cannot rely on paragraph 7(3)(b) of PIPEDA because the respondent is not the organization to whom the debt is owed. He also alleged that the respondent is contravening the Ontario Collection and Debt Settlement Services Act^{Footnote 3} by effectively acting as an unlicensed collection agency and by publishing personal information contrary to that Act.
15. During our investigation, the same complainant informed us that he had also complained to the Ontario Ministry of Government and Consumer Services (MGCS) about the respondent’s practices. We subsequently learned that MGCS had recently issued an order against the respondent requiring it to register as a Consumer Reporting Agency and, accordingly, comply with all of the requirements of the Ontario Consumer Reporting Act^{Footnote 4}. The Ministry determined that the respondent is providing a consumer report containing the credit and personal information of individuals with outstanding debt obligations arising from Court judgments in circumstances that require registration as a Consumer Reporting Agency.

The respondent’s position

16. The respondent asserted that PIPEDA did not apply as it was intended to protect consumers’ privacy rights and there was no vendor-consumer relationship between judgment debtors and the respondent. In the respondent’s view, PIPEDA is intended to stop commercial enterprises who gather personal information about individuals during the course of a commercial activity from using or disclosing that information without the person’s knowledge and consent. It was not intended, he asserted, to provide cover for recalcitrant debtors.
17. The respondent argued that the website was designed to promote access to justice and the rule of law in Canada by offering a platform to frustrated judgment creditors to publish facts pertaining to their judgments. It was clear that the respondent viewed its website as a corrective to what it sees as failings in the legal system that allow judgment debtors to avoid paying their debts.
18. Because the respondent’s website merely offers a platform, the respondent also argued that it was not actually collecting or disclosing personal information under PIPEDA. Rather it was judgment creditors that post the information and then disclose it using its platform.
19. The respondent further argued that its website is a form of journalism wherein facts are published with the intention and effect of informing the public, thereby protecting it. He also submitted that the fact that there are judgments against the complainants is a matter of public record and the website provides a platform for creditors to make the public record widely known using modern technology.
20. On the topic of consent, the respondent indicated that the “notion that consent should be required or could reasonably be obtained from uncooperative judgement debtors is fatuous” and that the personal information at issue is not of such a sensitive nature to override a “judgment creditor’s right to take reasonable steps to enforce its judgment.”

21. In defence of its business model, the respondent pointed to a program called Good Parents Pay, run by the Ontario government,^{Footnote 5} and a similar program in Alberta,^{Footnote 6} to enforce court-ordered support payments.

    The websites post information about missing defaulting payors, for the purpose of gaining the public's help in locating them. The individuals posted on the websites are registered with the office responsible for enforcing support payments, have not made their court-ordered support payments and cannot be found. An online search of individuals listed on the websites results in the display of their name and the website link; therefore those pages are indexed by search engines.

Application

22. In analyzing the facts, our Office applied subsection 5(3) as well as paragraphs 4(1)(a), 4(2)(c), and 7(3)(b) of PIPEDA.
23. Paragraph 4(1)(a) states that Part 1 of PIPEDA applies to every organization in respect of personal information that it collects, uses or discloses in the course of commercial activities.
24. Paragraph 4(2)(c) states that PIPEDA does not apply to any organization in respect of personal information that the organization collects, uses or discloses for journalistic, artistic or literary purposes and does not collect, use or disclose for any other purpose.
25. Subsection 5(3) states that an organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances.
26. Paragraph 7(3)(b) states that an organization may disclose personal information without the knowledge or consent of the individual if the disclosure is for the purpose of collecting a debt owed by the individual to the organization.

Analysis and Findings

Application

27. Turning first to the issue of jurisdiction, does PIPEDA apply to the business model of the website? Under paragraph 4(1)(a), PIPEDA applies to personal information that is collected, used or disclosed in the course of commercial activity. As indicated above, it is clear from the respondent’s website that a fee is collected from creditors for the posting of information about judgment debtors; therefore the respondent is engaged in commercial activity. Furthermore, the respondent’s business model relies on publishing the identities of judgment debtors, and other personal information about them, in order to bring pressure and coerce payment. Therefore, the respondent is, in our view, disclosing personal information on the website in the course of commercial activity within the meaning of PIPEDA. The very fact that the FAQ page contemplates the website’s compliance with PIPEDA further supports this position.
28. This conclusion is also consistent with the purpose of PIPEDA, which is to balance, in “an era in which technology increasingly facilitates the circulation and exchange of information”, the right of privacy of individuals and the needs of organizations to collect, use and disclose personal information for appropriate purposes.^{Footnote 7} Although the respondent is not in a consumer-vendor relationship with judgment debtors, it is nevertheless attempting to generate revenue by exposing their personal information online. It therefore falls within the type of activities PIPEDA was intended to cover.

Journalistic purpose

29. PIPEDA does not apply to information collected, used or disclosed by an organization for journalistic purposes, and for no other purpose. The respondent has claimed that the disclosure of the complainants’ personal information serves a journalistic function in that facts are published with the intention and effect of informing the public, thereby protecting it.
30. In a recent decision,^{Footnote 8} the Federal Court noted that the following criteria provided a reasonable framework for defining the “journalistic” purpose exception:

    “[…] an activity should qualify as journalism only where its purpose is to (1) inform the community on issues the community values, (2) it involves an element of original production, and (3) it involves a “self-conscious discipline calculated to provide an accurate and fair description of facts, opinion and debate at play within a situation”.

31. In our view, the respondent does not satisfy the above definition. In particular, it is not attempting to inform the community on matters of public interest (i.e., issues the community values). Rather it is attempting to coerce payment by publicizing details of individuals’ debts. Although the respondent contended that its website serves to protect the public, we note that there are already legitimate means, including, for example, credit reports, to obtain information about the credit worthiness of individuals. The respondent is also not engaged in original production since it is merely reposting information provided by others and it does not demonstrate a “self-conscious discipline” to provide an accurate and fair description of facts given that it permits judgment creditors and tipsters to publish information without any prior fact-checking or attempt to obtain a balance of perspectives that a journalist would normally engage in.
32. In any event, in our view, the primary purpose of the website (as articulated in the respondent’s Mission Statement) is to publicize the identities of judgment debtors in an effort to put pressure on their reputation, and ultimately coerce debt payment. Therefore our Office does not accept that the information is being disclosed exclusively for journalistic purposes and therefore determines that paragraph 4(2)(c) of PIPEDA does not apply.

Appropriate purpose

33. Based on the respondent’s mission statement, the purpose of the website is to publicize the identities of judgment debtors in an effort to put pressure on their reputation, and ultimately coerce debt payment. The website explicitly makes reference to the deliberate design of distinct URLs in order to make the judgment debtor highly visible on the internet. Moreover, the respondent is not simply publicizing the existence of a court judgment. It is also publicly disclosing the fact that the judgment remains unpaid, the amount of the outstanding debt, and a range of additional information about a debtor. Much of the information, including information about a debtor’s family (often unconnected to the judgment debts), their home address, and their “assets” could be considered sensitive depending on the context.
34. In making our determination, our Office considered the rules that collection agencies and consumer reporting agencies in Ontario must follow when dealing with information relating to unpaid debts. In general, the use and disclosure of information by these entities relating to debts owing by individuals is strictly regulated and may only be done in specified circumstances. Specifically, regulations made under the Collection and Debt Settlement Services Act of Ontario prohibit collection agencies, or persons acting on their behalf, from “[p]ublish[ing] or “threaten[ing] to publish the debtor’s failure to pay” and “[using] undue, excessive or unreasonable pressure.”^{Footnote 9}
35. Similarly, persons who act as consumer reporting agencies^{Footnote 10} are prohibited by the Ontario Consumer Reporting Act from disclosing information in their files (which includes information about outstanding debt obligations) except in specified circumstances, for instance, to persons who a consumer reporting agency has reason to believe intend to use the information for collection of a debt, employment purposes, underwriting insurance or who have a direct business need for the information.^{Footnote 11} Based on our review of this legislation, it does not appear that a person who acts as a consumer reporting agency would be permitted to disclose credit information to the world at large in the manner that the respondent is doing.
36. While rules vary across Canada; Quebec,^{Footnote 12} British Columbia^{Footnote 13} and Alberta^{Footnote 14} have similar restrictions in place for debt collection and consumer reporting agencies, which prohibit the communication of information relating to a debt to anyone beyond a narrowly defined group.
37. In support of his conduct, the respondent drew our attention to the similarities between the website, and the child-support enforcement programs run by the Ontario and Alberta governments. However, there are also important distinctions. These programs are regulated by a provincial governmental body that is created by specific statutory authority, and is bound by requirements set out in the legislation. In comparison, the respondent’s practice is not expressly authorized by statute, is done for a commercial purpose, and, in fact, discloses information related to unpaid debts in a manner that collection agencies and consumer reporting agencies appear to be prohibited from doing.
38. We also note that there are legal mechanisms available to creditors to lawfully enforce a court order. For example, the Ministry of the Attorney General of Ontario^{Footnote 15} has released a guidance document entitled “After Judgment – Guide to Getting Results” based on relevant legislation, and rules of procedure. This document sets out six steps to order enforcement, including garnishment. While the respondent appears to be motivated by what it perceives as shortcomings in the existing legal remedies, this does not give it license to side-step the protections that have been specifically put in place for individuals who have unpaid debts.
39. Given that the practice of publishing a debtor’s failure to pay is an explicitly prohibited practice for regulated collection agencies and that similar restrictions appear to exist for consumer reporting agencies, it is our view that a reasonable person would not consider it appropriate for an organization to broadly publicize this information for financial gain and for the purpose of coercing debtors into paying their debts, especially given the availability of legal mechanisms to enforce judgments.
40. Although the respondent appears to contest the application of the Consumer Reporting Act,^{Footnote 16} in our view its actions at the very least contravene the spirit of that legislation and the general protections the Ontario legislature has put in place to protect individuals from the type of public exposure of debtors that the respondent is actively promoting and engaged in.
41. Further, our Office has serious concerns with a business model that seeks, through coercive purposes, to gain financially from the public exposure of sensitive personal information via search engines, essentially leveraging and potentially damaging individuals’ reputations. Through the operation of this business model there is a risk of significant harm in that any person(s) conducting a web search of individuals listed on the respondent’s website could unintentionally stumble across this information, leading to reputational and other harms, including the use of it out of context for any purpose(s), such as engaging in potentially discriminatory activities.
42. Lastly, the respondent, on its website, suggests that its practice is expressly permitted by paragraph 7(3)(b) of PIPEDA. However, paragraph 7(3)(b) is subject to the overriding requirement of subsection 5(3) and must be interpreted in light of it.^{Footnote 17} Paragraph 7(3)(b) operates to allow organizations to disclose personal information when pursuing existing legal mechanisms for collecting a debt (for instance, to a debt collection agency). It does not permit the indiscriminate disclosure to the world at large of information relating to a judgment debtor in the manner that the respondent is doing.^{Footnote 18}

Preliminary Report of Investigation

43. In the preliminary report of investigation, our Office recommended that the respondent delete from its website and servers all information relating to judgment debtors that it publishes which contain personal information and take the necessary steps to remove this information from search engine caches. The respondent did not provide a response to the preliminary report and confirmed to our Office that he would not be accepting the recommendations or providing a written response to the preliminary report.

Conclusion and recommendations

44. Accordingly, our Office finds the complaint to be well-founded with respect to subsection 5(3) of PIPEDA, and unresolved.
45. Our Office has continuing interest in Public Executions Inc. complying with PIPEDA. Accordingly, the Office of the Privacy Commissioner of Canada will be considering next steps in pursuing this matter, in accordance with our authorities under PIPEDA.