This right applies in situations where there is a serious risk of harm to the individual, which could include risks to safety or dignity due to certain elements of personal information continuing to appear in online searches for their name. The risk of harm must outweigh the public interest in the information remaining accessible through a search.
The investigation of the complaint against Google found that the company had violated s. 5(3) of the Personal Information Protection and Electronic Documents Act (PIPEDA). The individual faced criminal charges that were dropped shortly after they were laid.
The charge came from an allegation that the individual did not disclose their HIV status to a person with whom they were sexually active. The Crown stayed criminal proceedings as the relevant public health authority was satisfied that the individual did not pose a current risk to public health.
Many years later, news articles about the charge were still made available through online searches for the individual’s name. The information was said to reveal highly sensitive personal information, which the individual claimed caused them direct harm including physical assault, loss of employment opportunities and severe social stigma.
The information from the search results included the person’s sexual orientation and activities, the fact that they are living with HIV and that they had been charged with a crime. The investigation determined that there was little to no public interest in such articles being returned after a search for the name.
A 2017 Department of Justice Canada study concluded that criminal law should generally not apply to those living with HIV in circumstances where there is no realistic possibility of transmission. Federal and provincial attorneys general issued similar directives to not prosecute HIV non-disclosure cases in these circumstances.
“It would appear unlikely that the charge would be laid today in similar circumstances if these directives were followed,” the findings read.
The original complaint was filed in 2017. Google questioned the commissioner’s jurisdiction in the early stages of the investigation. It suggested that the search engine was not bound by obligations set out under PIPEDA. The commissioner sought clarification on jurisdiction.
In 2021, the Federal Court of Canada agreed that “every component” of Google’s search engine’s business model “is a commercial activity as contemplated by PIPEDA” and also that the search engine does not collect, use or disclose personal information exclusively for journalistic purposes, despite Google’s argument of this. The Federal Court of Appeal upheld this decision in 2023.
In order to be PIPEDA-compliant, Google must delist the articles in question, the commissioner found, so they no longer appear when the relevant name is searched. The articles will continue to exist online and can be found on the websites where they were originally published. They will also still be searchable on Google, if the words inputted into the search engine are words other than the individual’s name.
The investigation findings noted that the majority of the articles provided incomplete and arguably misleading information. They were not updated to clarify that the proceeding was stayed and did not reflect the directives given federally or provincially.
Without this context, the reader may be left with a misguided impression of the circumstances, which could lead the public or anyone interacting with the individual in a professional or personal capacity to make unsubstantiated judgments and cause serious harm, including reputational harm, according to the findings.
“The Commissioner noted that recognizing the right to de-listing under PIPEDA — which is generally consistent with rights that exist under the European General Data Protection Regulation (GDPR) and Quebec’s private-sector privacy law — required a careful balancing of the individual’s fundamental right to privacy and the important Charter values protected by the right to freedom of expression,” the commissioner’s office said in a statement.
A report of the findings outlined factors that would favour delisting in the appropriate circumstances. Such factors included that the person is not a public figure, the matter did not relate to a matter of public debate, the information is inaccurate or out of date, the information relates to the individual when they were a minor, and/or that a significant amount of time has passed since the information’s publication.
“Google has declined to implement the Commissioner’s recommendation that it de-list the articles in question from the list of search results displayed when the individual’s name is searched,” the statement noted.
“The Commissioner indicated that his Office is considering all available options to secure Google’s compliance with the Act.”
In the investigation, it was found that Google’s accuracy-related obligations under the Act did not extend to the content of the linked articles. The company is only to ensure that personal information from search results accurately reflects the content of the articles and that the article in fact contains the name searched for.
There was no evidence suggesting that the search results did not accurately reflect the content of the linked media articles containing the complainant’s name. Google complied with accuracy requirements. The commissioner is recommending that Google also comply with the conclusion on s. 5(3) and delist the articles.
Google is positing that the question of whether PIPEDA includes the delisting right should be determined by the courts. The findings stated that the complaint was well-founded and unresolved.
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