Investigation and recommendations concerning Google search engine service’s compliance with its obligations under PIPEDA

Table of Contents

Overview

Background

The complaint

Google and its search engine service

Federal Court and Federal Court of Appeal confirm OPC ’s jurisdiction

Methodology

Analysis

The objectives of PIPEDA

Consent

Issue 1: Is Google contravening Accuracy requirements under Principle 4.6 of Schedule 1 of PIPEDA by continuing to display the search results in response to searches for the Complainant’s name?

Issue 2: Is Google contravening subsection 5(3) of PIPEDA by continuing to display the search results in response to searches for the Complainant’s name?

Recommendation

Google’s Response

Conclusion

Footnotes

PIPEDA Findings # 2025-002

August 27, 2025

Overview

In June 2017, the Office of the Privacy Commissioner of Canada (“ OPC ”) received a complaint against Google’s search engine service alleging that Google is contravening PIPEDA by including certain media articles in the list of search results displayed when the Complainant’s name is searched on Google. The articles, which were published many years earlier, relate to the Complainant being arrested and charged with a criminal offence resulting from an allegation that they did not disclose their HIV status to a person with whom they engaged in sexual activity. The Crown stayed the criminal proceedings shortly after the charge was laid as the relevant Public Health Authority was satisfied that the Complainant did not pose a current risk to public health. The federal, Quebec, Ontario, and British Columbia Attorneys General have since confirmed that charges should generally not be laid in circumstances where there is no realistic possibility of HIV transmission.

The Complainant stated that the articles are outdated and misleading, and that because these articles are linked to their name in search results, the Complainant has experienced serious harms such as physical assault, lost employment opportunities, and severe social stigma.

The Complainant seeks to have the media articles de-listed from search results displayed by Google in response to searches for their name. The term “de-listing” refers to the removal of certain search results (such as a webpage, image, or other online resource) from the list of results that is displayed in response to a specific search query. If a search result is de-listed, it remains available on the internet generally, and could still appear in search results displayed in response to other search queries.

When notified of the complaint, Google challenged the OPC ’s jurisdiction to investigate. We then turned to the Federal Court to determine whether PIPEDA was applicable in the circumstances. Both the Federal Court (July 2021) and Federal Court of Appeal (September 2023) agreed with our position that PIPEDA applies to Google’s search engine service.

We therefore proceeded with our investigation, to determine whether Google, by continuing to display the search results in response to searches for the Complainant’s name:

1. complied with accuracy requirements under Principle 4.6 of Schedule 1 of PIPEDA; and
2. collected, used or disclosed personal information only for a purpose that a reasonable person would consider appropriate in the circumstances, in accordance with subsection 5(3) of PIPEDA. After investigating the matter, we found that Google’s accuracy-related obligations under PIPEDA do not extend to the underlying content of linked articles. Google is responsible for ensuring that: (i) the personal information provided in its search results accurately reflects the content of the articles to which it links; and (ii) those articles do in fact contain the name in the search term. In this case, we found no evidence to suggest that the search results in question did not accurately reflect the content of the linked media articles. Further, we found that the articles did contain the Complainant’s name. We therefore determined that Google complied with the accuracy requirements under PIPEDA.

With respect to subsection 5(3) of PIPEDA, we found that there are limited circumstances in which a reasonable person would consider it inappropriate for a search engine to return, in response to a search for an individual’s name, content containing personal information about that individual. These circumstances would include those where returning the results in question causes or is likely to cause significant harm to the individual – including, as we have found in this case, harms to their safety or dignity – that outweigh any public interest associated with returning those results in the search for that individual’s name.

In this case, we found that the significant harms caused to the Complainant’s safety and dignity from displaying the articles in question outweigh the limited public interest in being able to access those articles through a search for the Complainant’s name.

The search results reveal extremely sensitive personal information about the Complainant, including their sexual orientation, sexual activities, the fact that they are living with HIV, and the fact that they had been charged with a crime. The disclosure of such sensitive information in search results has caused significant harm to the Complainant.

We further determined that there is little, if any, public interest in the articles in question being returned in response to a search for the Complainant’s name, for the following reasons:

1. The Complainant is not a public figure, and the highly sensitive information in the articles relates to the Complainant’s private life, as opposed to their public or working life.
2. While the articles relate to a criminal charge, the charge was stayed shortly after it was laid as the Crown prosecutor confirmed that the relevant Public Health Authority was satisfied that the Complainant did not pose a current risk to public health. In our assessment of this factor, we took note of additional considerations, including:
   1. A 2017 Department of Justice Canada study has since concluded that the criminal law should generally not apply to persons living with HIV in circumstances, such as those that led to the Complainant’s charge, where there is no realistic possibility of transmission; and
   2. The Attorney General of Canada (in 2018), as well as the Attorney General of Quebec (in 2020), the Attorney General of Ontario (in 2017), and the Attorney General of British Columbia (in 2019) each issued similar directives to generally not prosecute HIV non-disclosure cases in circumstances that do not pose a realistic possibility of transmission. It would appear unlikely that the charge would be laid today in similar circumstances if these directives were followed.
3. We accept that some of the information in the articles at issue in this complaint may relate to public debate concerning the criminal law’s treatment of allegations of HIV non-disclosure, but the public’s ability to find the articles in response to a search for the Complainant’s name does not meaningfully contribute to that debate, as the focus of the debate is at a broader societal level.
4. The vast majority of the articles provide incomplete – and arguably misleading – information, as they have not been updated to clarify that the proceeding was stayed. In addition, these articles do not reflect the fact that directives were given federally and in a number of provinces not to lay charges when there is no realistic possibility of transmission. Without this further context, a person reading these articles may be left with a misguided impression of the circumstances and this could lead the public and anyone interacting with the Complainant, whether professionally or personally, to make unsubstantiated judgements about them, and cause them serious harms, including reputational harm.
5. The articles were all published many years ago and this passage of time further diminishes the public interest in linking the articles to the Complainant’s name. We therefore concluded that the significant harms caused to the Complainant’s safety and dignity outweigh the limited public interest in continuing to display the articles in response to a search of the Complainant’s name. As a result, we found that Google is contravening subsection 5(3) of PIPEDA by continuing to do so.

We recommended that Google de-list the media articles in question from the search results that are displayed in response to a search for the Complainant’s name. To be clear, this would only affect the results of searches based on the Complainant’s name. Other searches would not be impacted in any way.

We determined that in the specific circumstances of this case, de-listing the articles represents an appropriate balance between the Complainant’s privacy rights protected by PIPEDA and the equally important Charter values protected by the right to freedom of expression.

Google did not agree to de-list the articles, taking the position that the question of whether PIPEDA includes a right to de-listing should be determined by the courts. As such, we find the complaint to be well-founded (and unresolved), with the exception of the accuracy aspect of the complaint where we did not find a contravention.

Background

The complaint

1. In 2017, the Office of the Privacy Commissioner of Canada (“ OPC ”) received a complaint alleging that Google LLC (“Google”) is contravening PIPEDA by prominently displaying links to several online news articles concerning the Complainant whenever their name is searched using Google’s search engine.
2. The news articles were published by a number of media organizations.
3. Links to several of the articles appear at the top of the first page of search results when the Complainant’s name is searched using Google’s search engine. Each search result contains the title of the article, an excerpt from the text of the article, and a link to the full text of the article on the website of the news organization where the article is found.
4. The news articles in question were initially published many years ago. The articles refer either explicitly to the Complainant’s HIV status, or more generally to their “medical condition,” which, in context, the Complainant submits can only be interpreted as HIV, and to a criminal charge that was brought against the Complainant stemming from an allegation that they had not disclosed their HIV status to an individual prior to engaging in sexual activity with them.
5. The Crown Prosecutor stayed the charge at an early stage of the proceeding. Charges can be stayed by the Crown where there is no reasonable prospect of conviction, or where the prosecution of the charge is not in the public interest. In this case, the Crown prosecutor confirmed that the relevant Public Health Authority was satisfied that the Complainant did not pose a current risk to public health. In prosecutorial Directives issued since 2017, the Attorneys General of Canada, Quebec, Ontario and British Columbia have confirmed that HIV non-disclosure charges should not be laid when there is no realistic possibility of transmission.
6. At the time of drafting this report, Footnote 1 a Google search for the Complainant’s name continues to present articles from several media organizations. With a few exceptions, the articles do not indicate that the charge against the Complainant was stayed and instead refer to a police service’s public media release publicizing the charge. Only a few articles note that the charge was stayed by the Crown prosecutor.
7. The Complainant alleges that the fact that Google prominently links these articles to their name in search results has caused, and continues to cause them, direct harm, including physical assault, lost employment opportunities and severe social stigma.
8. During the course of our investigation, the Complainant submitted three additional complaints to the OPC with the same allegations and facts as the complaint we received in 2017. Given that these complaints were already the object of this investigation, the OPC discontinued the investigations into these complaints under paragraph 12.2(1)(d) of PIPEDA. Footnote 2
9. The Complainant alleges that Google is contravening subsection 5(3) and Principles 4.3.8, 4.6, 4.9 and 4.3.4 of Schedule 1 of PIPEDA.
10. The Complainant has asked the OPC to recommend that Google “de-list” Footnote 3 certain articles from the list of search results displayed when their name is searched using Google’s search engine.
11. For the reasons that follow, we find that, while Google is complying with PIPEDA ’s accuracy requirements (Principle 4.6), the continued display of these articles following a search of the Complainant’s name is inconsistent with subsection 5(3) of PIPEDA and as a result, this aspect of the complaint is well-founded.
12. We come to this conclusion based on our finding that the significant harms caused to the Complainant’s safety and dignity as a result of the dissemination of this sensitive personal information outweigh the limited public interest in making this information available through a search for the Complainant’s name.
13. To resolve the matter, we recommend that Google de-list the articles at issue from the list of search results displayed when the Complainant’s name is searched using Google’s search engine. The articles would remain available on the internet and could still be found by searching for other terms.

Google and its search engine service

1. Google LLC is a for-profit limited liability company that is a subsidiary of the publicly traded company, Alphabet Inc., which is headquartered in California, and its search engine service is managed from its California headquarters. Google Canada Corporation is incorporated in Nova Scotia, though its Canadian offices are located in Kitchener and Toronto, Ontario and Montreal, Quebec. Although the Complainant named both Google LLC and Google Canada Corporation in their complaint, we understand that Google Canada Corporation is not involved in indexing of web content or the return of search results to users of Google’s website.
2. Google’s mission statement reads: “Our mission is to organize the world’s information and make it universally accessible and useful.”
3. This mission statement also guides Google’s approach to its other services, such as Google News, which, Google states, aims to “make it easier to stay informed by using technology to organize and help people access information about current issues and events.” Footnote 4
4. Google offers its search engine service via various country-specific websites and through the Google search app available on mobile devices. In Canada, the country-specific website for Google’s search engine is www.google.ca. Similar websites exist for other countries. However, users of Google’s search engine are able to choose (via their search settings) the website from which they conduct a search (e.g., a user in Canada can opt to search via Google.com). We understand that as of 2017, users are directed to country-specific search results by default regardless of whether they enter country-specific domain names, such as Google.ca, Google.com or Google.fr. Although there are other search engine services available, Google controlled at least 91% of the search engine market share worldwide as of January 2024. Footnote 5 In Canada, Google is the leading search engine, accounting for more than 91% of the search engine market. Footnote 6
5. In general terms, internet search engines such as Google allow individuals (“users”) to search for content on the World Wide Web (“the Web”), an information space that organizes content on the internet via webpages. Website operators can store content (including text, images and videos) on webpages, which are made accessible to internet users via Web servers connected to each other through the internet. The Web is said to be made up of well over a hundred million active websites that in turn contain billions of webpages. Footnote 7
6. Google’s search engine allows a user to search for webpages amidst this vast content by inputting search queries. In response to such queries, Google displays to users what it considers to be the most relevant webpages from across the Web in the form of search results. Through Google’s advertising programs, advertisements can be found in several locations of the search results webpage, marked with the “Ads” label. Footnote 8
7. The operation of Google’s search engine can be broken down into three basic functions: 1) crawling, 2) indexing, and 3) displaying search results. Footnote 9

Crawling

1. Crawling is an automated process that involves the use of a “crawler” (also referred to as a “Web spider” or “robot”) to access and gather information from webpages that make up the Web. A crawler is essentially an automated web browser that obtains access to webpages in the same way that a browser would. Google’s crawlers continuously access publicly accessible webpages, and copy and transmit information from those webpages back to Google’s servers for it to be indexed. The information that Google’s web crawlers gather from webpages includes the content of the webpages such as the title, headings and other text found on the webpages.
2. Google’s computer programs determine which websites its crawlers access, how often they do so, and how many webpages are accessed from each website. Except for websites where the operator has taken steps to prevent Google’s crawlers (described below) from accessing its website(s), Google’s crawlers generally access all types of publicly accessible webpages found on the Web.

Indexing

1. The information gathered from webpages by Google’s crawlers is then added to an index maintained by Google, which serves to organize the information retrieved so that it can be searched. This is how Google describes the content of its index: > The Google Search index contains hundreds of billions of webpages and is well over 100,000,000 gigabytes in size. It’s like the index in the back of a book — with an entry for every word seen on every webpage we index. When we index a webpage, we add it to the entries for all of the words it contains. Footnote 10
2. Google’s index reflects the content of the webpages it has indexed. Thus, if a webpage that has been indexed by Google contains an individual’s personal information (for instance, their name along with other information about them), the personal information will also be contained in Google’s index.
3. The information in Google’s index is continuously updated as its crawlers re-crawl webpages over time. If a new webpage appears, an existing webpage is altered, or an old webpage is removed, Google’s index is updated accordingly, once the change has been registered by the crawlers.
4. As noted above, website operators can take measures to prevent visits by Google’s crawlers or the appearance of their websites in Google’s index. For instance, a website operator can configure a web server to refuse to respond to requests for access from one of Google’s crawlers. Similarly, a website operator can indicate that it does not wish certain content to be accessed or indexed by a search engine crawler by including a file called “robots.txt” on its website or by including certain exclusion headers or codes in a webpage, and Google will honour such requests.
5. Google represented that all of the websites that published the articles at issue permitted indexing by its search engine service. Most of them disallowed indexing by certain other search engines and included additional metadata in their robots.txt files and on individual pages to facilitate indexing by Google.

Displaying search results

1. When a user enters a search query in Google search, Google’s search engine consults its index and returns webpages that are relevant to the query in the order that Google considers them to be of likely interest to the user. Footnote 11 Search results displayed by Google include the title of the webpages, links to the webpages, and short textual “snippets” from the webpages that generally show the search terms in the context of the webpage. The title, link, and textual “snippets” may appear in a list of search results even after the original webpage is changed or becomes unavailable, as these changes would only be reflected after the next time that Google crawls the website. Footnote 12 Search results may also include images or video clips that are considered responsive to the user’s search query.
2. There is no limit to the searches that can be performed in Google’s search engine, and such searches can include a person’s name. When a user searches for an individual’s name in Google’s search engine, the search results will contain all webpages and other content on the Web that have been indexed by Google and that Google has determined are relevant to the person’s name. Generally, the person’s name will also appear in the “snippets” presented in the search results along with the surrounding text in which the name appears.
3. By default, search results on www.google.ca are returned under the tab “All”. However, users may refine the type of content that appears in the search results by clicking on other, more specific tabs such as for “Images”, “News”, “Videos”, “Maps”, “Shopping”, “Flights” and other categories.
4. Google uses proprietary algorithms to determine which webpages are responsive to a search query, as well as the order in which those webpages appear in its search results. Google indicates that its algorithms analyze “hundreds of billions of webpages and other content” to determine the relevance of webpages, including by considering how recent the content is, the number of times it has been linked to by “prominent websites”, and whether the website appears to be manipulating its prominence in search results. Footnote 13
5. Google may also modify what search results are presented, and the order in which they are presented, based on factors such as a user’s location, their past search history and their search settings, which allow a user, for instance, to block inappropriate or explicit images from appearing in search results.
6. The popularity of Google’s search engine has made it one of the most profitable corporations in the world. The bulk of its revenue comes from advertising, which is largely generated from Google’s search engine and other online services. Footnote 14 Through its Google Ads product, Google allows advertisers to have their websites displayed on the webpage that displays Google search results, with an “Ads” label, in response to specific keywords searched. Footnote 15 Advertisers pay Google a fee each time a user clicks on an ad or if they take an action after seeing an ad, such as downloading an app.
7. Google may also earn revenue if a user navigates to a webpage listed in Google search results and then clicks on or views an ad delivered by Google displayed on that webpage. While Google states that its search results are independent from its advertising program, Google promotes its advertising business by highlighting the popularity of its search engine service, as well as its ability to target ads to users of its search engines based on personal information it has about them.
8. The content that may be returned in Google search results is varied and reflects the wide diversity of content that is available on the Web. Search results can, depending on the query, return links to websites of businesses, governments, non-governmental organizations and news organizations, shopping websites, social media sites such as Facebook and X (previously Twitter), personal blogs and websites, chatrooms and many other types of sites. There is no central authority that determines what content is included on the Web or that filters content before it is posted. This is the result of the distributed nature of the Web: in principle, any person or organization with an internet connection and access to a computer can create a website and post content to it, Footnote 16 which may then be indexed by search engines such as Google. In addition, some websites allow internet users to post information directly on their sites without prior review (e.g., social media sites, chatrooms, review websites).
9. As such, search engine results can help find not only useful and valuable information, but also content that may be illegal or harmful. As set out below, Google recognizes that some of the content found on the internet may cause harm and it will remove content from its search results in certain circumstances. For instance, there are websites that encourage individuals to post intimate images of other individuals for the purpose of shaming (so-called ‘revenge porn’ websites), and these webpages can appear when a person’s name is searched in a search engine. Footnote 17

Google’s removal policies

1. According to Google, it does not generally remove content from search results, although circumstances when it will do so include:
   1. search results that lead to images of child sexual abuse;
   2. search results that contain sensitive personal information such as government ID numbers, bank account numbers, credit card numbers, images of signatures, and confidential medical records;
   3. search results that contain nude or sexually explicit videos that have been shared without consent;
   4. search results that violate Google’s anti-spam policies; Footnote 18
   5. legal requests based on local law that Google determines to be valid; and
   6. at the request of the person who is responsible for the webpage in question. Footnote 19
2. For users in the European Union (“ EU ”), who are covered by different data protection laws than Canadian users, Google will remove personal information from its search results pursuant to the Court of Justice for the European Union (the “ CJEU ”)’s decision in Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González (“Google Spain”), Footnote 20 the General Data Protection Regulation (“ GDPR ”) Footnote 21 and the relevant laws of member states. Footnote 22 According to the Google Spain decision, personal information may be required to be removed from search results returned in response to a search for an individual’s name where it is inaccurate, inadequate, irrelevant or no longer relevant, or excessive and provided that the public interest in accessing the information does not outweigh the interests of the individual concerned. Footnote 23
3. According to Google’s latest transparency report, it has de-listed over three million webpages from its search results in the EU since 2014 based on the Google Spain decision. Footnote 24 The following are examples of cases where Google de-listed results from searches for an individual’s name:
   1. articles and social media posts that reported on the disappearance of a minor who was no longer missing and no longer a minor;
   2. a website that reported on an individual’s testimony against their mother during the trial for the murder of their father;
   3. a news article published 19 years earlier that revealed that an individual had been the victim of abusive treatment when they were a member of a children’s organization;
   4. webpages that discussed legal proceedings, which were later dropped, in relation to an individual’s publication of prohibited content when they were a student;
   5. news articles published between 2009 and 2016, which reported that an individual, who was a business professional, had been accused and acquitted of fraud; and
   6. a news article published 21 years earlier about an individual sentenced to a 6-year prison sentence for their involvement in a fatal shooting.
4. This Report of Findings uses the term “de-listing” to refer to the removal of certain search results (such as a webpage, image, or other online resource) that are displayed in response to a specific search query, such as an individual’s name. De-listing does not involve removing the search results from Google’s index, nor from the source website. The webpage would still appear in Google’s search results in response to other search terms (e.g., in relation to other content on the webpage) – all that is removed is the link between the search result in question and the search query (in this case, the Complainant’s name) in Google’s search results. Webpages and other online resources de-listed from Google’s search results for a specific search term can still be found using the search function of the website where the webpage is located (if one is available), via hyperlinks on other webpages, or by entering the webpage’s Uniform Resource Locator (“ URL ”, the unique address assigned to every webpage) in a browser.
5. In contrast, this Report of Findings uses the term “de-indexing” to refer to the removal of a specific webpage from a search engine’s index. When a search result is de-indexed, it would no longer appear in any list of search results from the search engine, regardless of what search term is used, and therefore would only remain accessible through other means outlined above at paragraph 40 (i.e., using the search function of the website, through hyperlinks available on other webpages or by entering the webpage’s URL in a browser).
6. In other circumstances, Google may alter its algorithms so that certain webpages appear lower in search results, without removing them completely. Footnote 25 For instance, Google has in the past taken steps to ensure that websites that publish mugshots and require individuals to pay to have them removed appear lower in its search results. Footnote 26

Federal Court and Federal Court of Appeal confirm OPC ’s jurisdiction

1. In response to the OPC ’s notification of the complaint in 2017, Google took the position that PIPEDA did not apply to the operation of its search engine service by virtue of section 4 of the Act. Specifically, Google stated that the operation of its search engine service is not a commercial activity within the meaning of paragraph 4(1)(a) of PIPEDA.
2. Google also asserted that, in any event, its search engine service is exempt from PIPEDA by virtue of paragraph 4(2)(c) of the Act, which exempts personal information that is collected, used or disclosed for “journalistic, artistic or literary purposes” and for no other purpose, from the application of Part 1 of PIPEDA. Google argued that its search engine “is fundamentally a journalistic or literary operation, particularly when providing an individual user with access to news media content and providing news media producers with access to readers.” Google further asserted that its search engine primarily relates to the dissemination of news and information, and this is particularly true in this case where the impugned links are to legitimate Canadian news outlets.
3. While Google News is a different service than Google’s search engine, it uses the same web crawling and indexing technology as Google Search to continually identify and organize content in addition to enabling news publishers to directly add content by submitting Really Simple Syndication feeds, website URL s or videos to Google. Google News’ algorithms build upon the ranking systems used by Google Search and consider additional key factors such as the noteworthiness of the news story, the authoritativeness of the source, and how recently the news content was published. Footnote 27 Although the articles at issue are from legitimate Canadian news outlets, we note that searching the Complainant’s name in Google News does not return any results. In a broad sense, this demonstrates that Google News’ algorithms do not identify the articles as newsworthy. Footnote 28
4. Google also submitted that an interpretation of PIPEDA that would require the de-indexing or de-listing of lawful, public content would be contrary to section 2(b) of the Canadian Charter of Rights and Freedoms (“the Charter ”) and would not be saved by section 1 of the Charter.
5. In October 2018, the OPC filed two questions with the Federal Court seeking a determination as to whether PIPEDA applies to Google’s search engine service when it indexes webpages and presents search results in response to searches of an individual’s name. Specifically, the OPC referred the following two questions:
   1. Does Google, in the operation of its search engine service, collect, use or disclose personal information in the course of commercial activities within the meaning of paragraph 4(1)(a) of PIPEDA when it indexes webpages and presents search results in response to searches of an individual’s name?
   2. Is the operation of Google’s search engine service excluded from the application of Part 1 of PIPEDA by virtue of paragraph 4(2)(c) of PIPEDA because it involves the collection, use or disclosure of personal information for journalistic, artistic or literary purposes and for no other purpose?
6. The OPC did not refer the Charter questions raised by Google to the Federal Court, on the basis that the questions were premature because they presumed that PIPEDA applied to the operation of Google’s search engine service, as well as the results of an investigation that had not yet concluded.
7. In July 2021, the Federal Court issued its decision on the Reference questions. In response to the first question, the Federal Court held that Google is collecting, using and disclosing personal information in the course of commercial activities in the operation of its search engine service. In reaching this finding, the Court noted that there is a “real trade between Google and the users of its search engine”, with users providing Google with personal information (their location, preferences, interests, etc.) that is then used for profit in exchange for search results. Footnote 29 As such, the Federal Court concluded that “every component” of Google’s search engine’s business model “is a commercial activity as contemplated by PIPEDA ”. Footnote 30
8. In response to the second question, the Federal Court found that Google does not operate its search engine service for a journalistic purpose at all, or that it at least does not operate it for an exclusively journalistic purpose, such that it could not rely on the exemption found in paragraph 4(2)(c) of the Act. The Federal Court stated that the “primary purpose of Google’s search engine service is to index and present search results”. Footnote 31 Thus, while Google’s search engine service may facilitate access to information, it does not contain other defining features of journalism, such as content control or content creation. Footnote 32
9. Google appealed the Federal Court’s decision. It asked the Federal Court of Appeal to either strike the Reference questions or to decline to answer them on the basis that the questions should not or could not be answered without also addressing the issue of whether a potential requirement to remove links from search results would violate section 2(b) of the Charter. In the alternative, Google argued that the Court of Appeal should overturn the Federal Court’s answer to the second Reference question, regarding the journalistic exception. It did not appeal the Court’s answer to the first Reference question regarding whether the operation of Google’s search engine is a commercial activity.
10. The Federal Court of Appeal upheld the Federal Court’s decision that Google’s search engine service is subject to PIPEDA and is not exempt under paragraph 4(2)(c) of PIPEDA. Footnote 33 It also found that the Reference questions were capable of being answered without consideration of the Charter issues raised by Google and agreed with the Federal Court’s conclusion that the “answers to the reference leave open questions that call for the Commissioner not to authoritatively decide, but to consider, the Charter or Charter values”. Footnote 34 Google did not seek leave to appeal the Federal Court of Appeal’s decision.
11. For clarity, we note that under paragraph 4(2)(c) of PIPEDA, news organizations that collect, use or disclose personal information for solely journalistic purposes are exempt from PIPEDA. Thus, PIPEDA does not apply to the original publication of the news articles at issue in this case by the media organizations.

Methodology

1. In coming to our conclusions over the course of this investigation, the OPC considered information from a variety of sources, including:
   1. written representations to the OPC provided by the parties (the Complainant and Google);
   2. written representations to the OPC provided by the media organizations responsible for publishing the articles at issue in this complaint; Footnote 35
   3. representations made by the parties in related legal proceedings;
   4. information that the OPC gathered and analyzed from publicly available sources concerning issues relevant to the investigation; and
   5. the Draft OPC Position on Online Reputation (“Draft Position Paper”) Footnote 36 prepared and published following consultations with various stakeholders and the Canadian public on the issue of online reputation and privacy. We note that the Draft Position Paper was never formally adopted as OPC Guidance but has been used as a non-binding frame of reference for the purpose of our analysis in this matter.
2. Upon completion of the evidence-gathering phase of our investigation, the OPC issued a Preliminary Report of Investigation (“ PRI ”) and Summary of Key Representations (“ SKR ”) to Google. The PRI set out the rationale for our preliminary findings, identified the matters of concern detailed below, and stated our recommendation that Google de-list the articles in question to bring the company into compliance with the Act. The SKR summarized the key representations we received from the Complainant, Google and media organizations over the course of our investigations. In its response to the OPC, Google provided comments on the factual findings in the PRI and SKR, which we have incorporated into this report where appropriate. As detailed further in the Recommendations section of this report, Google did not agree to comply with our recommendation.

Analysis

The objectives of PIPEDA

1. Given that the OPC ’s findings in this case engage Charter protections, we begin our analysis with an overview of the objectives of PIPEDA and its origins. The Supreme Court of Canada has held that when Charter protections are engaged by an exercise of discretion in the context of administrative decisions, statutory interpretation, or policymaking, administrative decision-makers, such as the Privacy Commissioner, must balance these Charter protections against the statutory objectives at issue. This involves first considering the relevant statutory objectives and then engaging in a proportional balancing of these objectives with the Charter protections at play, which in the current circumstances include both freedom of expression and privacy. Footnote 37
2. PIPEDA has been recognized as quasi-constitutional in nature. It seeks to provide individuals with control over their personal information, and as such, is closely connected to fundamental values of autonomy, dignity and privacy. Footnote 38 PIPEDA ’s legislative history also makes it clear that it was enacted against a background of concerns regarding the privacy implications of e-commerce and the internet, which could allow for personal information to be circulated, used and sold with unprecedented ease by commercial organizations. The Government of Canada’s consultation paper that preceded PIPEDA (“Consultation Paper”) noted that “[t]he challenge of the electronic age is that with each transaction we leave a data trail that can be compiled to provide a detailed record of our personal history and preferences”. Footnote 39 The Consultation Paper also referred to concerns about what could happen if information was widely available for others to use: > As more information about us becomes available, it is used in a wider variety of situations to make decisions about issues such as the kinds of services we are entitled to, the jobs we are qualified for and the benefits we may be eligible for. It is extremely important to have mechanisms in place to give us control over our own personal information and enable us to ensure that it is both accurate and relevant. Footnote 40
3. In addition to these concerns, at the time PIPEDA was enacted, there were also concerns that Canada risked falling behind the EU, which had recently put in place its own framework for protecting personal information through the Data Protection Directive, the predecessor to the current GDPR. Footnote 41 Of particular concern was the fact that the EU Data Protection Directive had the potential to block the flow of personal information, and therefore ultimately commerce, if Canada did not put in place protections for personal information that were “adequate” in comparison to the EU framework. Footnote 42
4. As explained in the Consultation Paper, PIPEDA was meant to address these concerns by setting out basic protections that would provide individuals with some control over their personal information, thereby promoting trust in the digital economy and online services. Footnote 43 This can be seen in PIPEDA ’s long title, which reads in part “ An Act to support and promote electronic commerce by protecting personal information that is collected, used or disclosed in certain circumstances ”. It can also be seen in PIPEDA ’s purpose clause, which recognizes that we are “in an era in which technology increasingly facilitates the circulation and exchange of information”. Accordingly, PIPEDA ’s purpose is to establish “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 ” (emphasis added). Footnote 44
5. As the Supreme Court of Canada has noted, PIPEDA and provincial statutes like it are “part of an international movement towards giving individuals better control over their personal information”. Footnote 45 This objective is increasingly important in light of the fact that “new technologies give organizations an almost unlimited capacity to collect personal information, analyze it, use it and communicate it to others for their own purposes”. Footnote 46 In the Supreme Court’s words, statutes such as PIPEDA reflect “an emerging recognition that the list of those who may access and use personal information has expanded dramatically and now includes many private sector actors”. Footnote 47
6. PIPEDA was also designed to be flexible and technologically neutral. Through the use of broad definitions and the high-level principles found in Schedule 1, PIPEDA was intended to apply to “all manner of information gathering … including paper, telephone and the internet”. Footnote 48 The intent was that PIPEDA would “not become outdated as technologies for the collection and storage of information change” and that the Act would be able to address “both present and future challenges” posed by the digital environment. Footnote 49
7. In our analysis below, we will consider these statutory objectives against the Charter protections at issue in this case.

Consent

1. While not forming part of their main arguments, the Complainant also alleged that Google is collecting, using and disclosing their personal information without their consent and that it is required to de-list the articles in accordance with Principles 4.3.4 (opt-in consent required when sensitive personal information involved) and 4.3.8 (withdrawal of consent). Given that this was not a main focus of this complaint, and since we are able to address the complaint through the application of other provisions in PIPEDA which were central to the complaint, we will not be addressing this issue in this investigation.

Issue 1: Is Google contravening accuracy requirements under Principle 4.6 of Schedule 1 of PIPEDA by continuing to display the search results in response to searches for the Complainant’s name?

1. For the reasons explained below, we find that Google did not contravene the accuracy requirements under Principle 4.6 of Schedule 1 of PIPEDA and as such, this aspect of the complaint is not well-founded.
2. Principle 4.6 of Schedule 1 of PIPEDA states that “personal information shall be as accurate, complete, and up-to-date as is necessary for the purposes for which it is to be used”. Further, Principle 4.6.1 of Schedule 1 of PIPEDA states that “the extent to which personal information shall be accurate, complete, and up-to-date will depend upon the use of the information, taking into account the interests of the individual. Information shall be sufficiently accurate, complete and up-to-date to minimize the possibility that inappropriate information may be used to make a decision about the individual.”
3. The Complainant asserts that the media articles in question showing in the list of search results inaccurately associate them with a serious crime and that certain articles are further incomplete and not up-to-date as they do not report that the charge was later stayed.
4. The Federal Court has held that “[o]ne of the central objects of PIPEDA is to encourage those who collect, use and disclose personal information to do so with a degree of accuracy appropriate to the use to which the information is to be put and to correct errors quickly and effectively”. Footnote 50 In a broad sense, the accuracy of information about an individual is also tied to an individual’s reputation and by extension, their innate dignity. The Supreme Court of Canada has held that “the good reputation of the individual represents and reflects the innate dignity of the individual, a concept which underlies all the Charter rights”. Footnote 51
5. When the Complainant’s name is searched in Google’s search engine, Google displays the results of indexed webpages that it considers relevant to the Complainant’s name. Taking into account the Complainant’s privacy interests, these search results – including the snippets displayed – must reflect, with sufficient accuracy, the content of the associated webpages. In our view, Google’s accuracy requirements do not extend to the underlying content on linked webpages, over which it has no control and for which it is not accountable. The OPC ’s Draft Position Paper proposed that a search engine should be responsible for correcting information in the underlying content which has been demonstrated to be inaccurate, incomplete or not up-to-date. However, having considered the submissions of Google in the context of this investigation, we find that Google’s accuracy requirements are limited to the list of search results and do not extend to the underlying content. Footnote 52 As such, Google would contravene Principle 4.6 if the snippets associated with its search results did not accurately reflect personal information included on the linked webpage, but not if it accurately reflects personal information that is itself ultimately inaccurate on the linked webpage.
6. Principle 4.9.5 provides, in part, that “when an individual successfully demonstrates the inaccuracy or incompleteness of personal information, the organization shall amend the information as required.” However, in the present case, the Complainant has not complained about the accuracy of the list of search results that is returned in response to a Google search for their name. As mentioned previously, this aspect of their complaint is about the accuracy and completeness of the information found in the underlying news articles that Google is linking to in the list of search results returned in response for a search for the Complainant’s name.
7. While we find that Google is not responsible for the accuracy of the information in the underlying content, the fact that the articles in question contain incomplete – and arguably misleading – information, is a factor that we consider in determining whether Google’s continued display of the information contravenes the appropriate purpose principle in subsection 5(3).

Conclusion on Issue 1

1. As explained above, we find that Google did not contravene Principle 4.6 in this case, as the search results at issue in this complaint accurately reflect the content on the linked webpages, and the linked webpages contain the Complainant’s name.

Issue 2: Is Google contravening subsection 5(3) of PIPEDA by continuing to display the search results in response to searches for the Complainant’s name?

1. Subsection 5(3) of PIPEDA 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”. This provision gives effect to the statutory objective of PIPEDA, which recognizes both individuals’ right of privacy over their personal information as well as the need of organizations to collect, use or disclose personal information, when they are doing so for purposes that a reasonable person would consider appropriate in the circumstances. As the Federal Court of Appeal recently confirmed in the Facebook decision, PIPEDA does not require a balance between competing rights, but rather, between an individual’s right and a corporation’s need to collect personal information. Footnote 53
2. We generally find Google’s collection, use and disclosure of personal information for the purpose of indexing the internet and displaying search results to be appropriate. However, for the reasons set out below, we find that a reasonable person would consider Google’s disclosure of the articles at issue in response to a search for the Complainant’s name to be inappropriate in the circumstances and that Google is contravening subsection 5(3) by continuing to do so.
3. We come to this conclusion on the basis that (1) the continued display of these articles in response to a search of the Complainants’ name constitutes a disclosure of sensitive personal information that causes significant harm to the Complainant, which in this case results in an affront to their dignity; and (2) that these significant harms outweigh the limited public interest in being able to access those articles via a search of the Complainant’s name.

Charter protections engaged

1. The OPC recognizes that the interpretation and application of subsection 5(3) of PIPEDA in this context engage Charter considerations. As discussed at paragraph 134 of this Report, where an administrative decision engages Charter protections, we must consider how the Charter protections will be best protected in view of PIPEDA ’s statutory objectives.
2. As noted in our Draft Position Paper, both the protection of an individual’s online reputation generally, and issues related to de-listing Footnote 54 webpages from search results specifically, raise freedom of expression considerations. During this investigation, Google has argued that requiring it to de-list lawfully published news articles would affect its right to freedom of expression under section 2(b) of the Charter, as well as the expressive rights of the publishers of the articles and the general public who may be seeking them out. It further asserted that de-listing the articles would limit the media’s protected right to disseminate expressive content, like newspaper articles, over the internet. We also received similar representations during the course of this investigation from one of the media organizations responsible for publishing the articles at issue.
3. The right to freedom of expression as protected by section 2(b) of the Charter is broad in scope. The Supreme Court of Canada has found that freedom of expression covers any activity that “conveys or attempts to convey meaning” with the exception of violence and that the concept is to be given a “large and liberal interpretation”. Footnote 55 The Supreme Court has also found that freedom of expression protects not just speakers but listeners as well, and, in particular, the right of individuals to receive and access information that is of public interest. Footnote 56 The OPC therefore recognizes that our finding that Google has contravened subsection 5(3) and our recommendation that it de-list the search results in question, explained in detail below, may impact Google’s, the media’s and the public’s right to freedom of expression under section 2(b) of the Charter.
4. However, freedom of expression is not absolute, and both the nature of the privacy interests and the nature of the expression must be considered in striking an appropriate balance between the statutory objectives of PIPEDA, which embody the Charter value of privacy, and freedom of expression. Footnote 57
5. The Supreme Court has identified three “core values” that underlie freedom of expression: the search for, and attainment of, truth; the opportunity for self-fulfillment through expression; and participation in social and political decision-making. However, the Court has also stated in the context of defamation cases that “[a] good reputation is closely related to the innate worthiness and dignity of the individual … that must, just as much as freedom of expression, be protected by society’s laws” Footnote 58 and that “ Charter principles do not provide a licence to damage another person’s reputation simply to fulfill one’s … desire to express oneself”. Footnote 59
6. The Supreme Court has also stated, in a case involving section 8 of the Charter (the right to be free from unreasonable search and seizure), that privacy “is not an all-or-nothing concept” and that while “evolving technologies may make it easier, as a matter of fact, for state agents or private individuals to glean, store and disseminate information about us, this does not necessarily mean that our reasonable expectations of privacy will correspondingly shrink”. Footnote 60
7. Finally, the Supreme Court of Canada has also found that privacy can be the basis for making an exception to the open court principle, which is a fundamental feature of a liberal democracy. There are significant differences between the open court principle, which allows public and media access to Court proceedings and records, and a commercial search engine’s collection, use, and disclosure of personal information in media articles about a criminal law matter that are already otherwise publicly available. Nevertheless, even in the open courts principle context, where there is a very strong presumption in favour of openness, the Supreme Court’s reasons for judgment in Sherman Estate Footnote 61 recognize that privacy may at times prevail over openness.
8. The OPC considered the interplay between freedom of expression and the protection of privacy in the development and application of the framework described below. The framework, including the factors considered within it, recognizes the role that search engines can play in furthering others’ (e.g., the media and the public’s) freedom of expression. In particular, these freedom of expression considerations informed our assessment of the public interest in the articles remaining connected to the Complainant’s name in Google’s search results.

Appropriate purposes assessment under subsection 5(3) of PIPEDA

1. In the section below, we apply a framework to assess whether Google is collecting, using, and/or disclosing the Complainant’s personal information for purposes that a reasonable person would consider to be appropriate in the circumstances, as required by subsection 5(3) of PIPEDA. In our view, this framework takes into account the relevant considerations identified by the courts for interpreting subsection 5(3), as well as the interplay between freedom of expression and the protection of privacy.
2. As noted in the OPC ’s Guidance on inappropriate data practices, Footnote 62 the Federal Court has set out the following factors for evaluating whether an organization’s purpose complies with subsection 5(3):
   1. the degree of sensitivity of the personal information at issue;
   2. whether the organization’s purpose represents a legitimate need / bona fide business interest;
   3. whether the collection, use and disclosure would be effective in meeting the organization’s need;
   4. whether there are less privacy invasive means of achieving the same ends at comparable cost and with comparable benefits; and
   5. whether the loss of privacy is proportional to the benefits. Footnote 63
3. The Federal Court has also consistently emphasized that the application of subsection 5(3) needs to be flexible in accordance with the circumstances, and that the factors considered in a given case may vary accordingly. Footnote 64
4. In a recent case where subsection 5(3) was at issue, the Federal Court focused on two factors in particular: 1) whether 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. Footnote 65
5. The approach to necessity and proportionality is frequently found in balancing tests in other areas of the law where rights are being limited. This includes the Oakes test for assessing whether a Charter right infringement can be justified, and the Sherman Estate test for determining whether an exception to the open court principle can be made. With respect to the latter, the Supreme Court has specifically referenced the disclosure of a person’s sexual orientation or HIV status as examples where courts have exercised their discretion to limit court openness Footnote 66 because disclosure of this sensitive information in pursuance of the open court principle would lead to disproportionate consequences to the person’s privacy and dignity.
6. As noted in our Draft Position Paper, Footnote 67 the OPC generally considers that search engines use and disclose personal information for appropriate purposes when they index webpages containing personal information and return them in search results for searches for an individual’s name. Indeed, it is difficult to imagine successfully navigating the wealth of information online, including personal information, without search engines.
7. However, as noted above, the Federal Court has held that compliance with subsection 5(3) must be assessed on a case-by-case basis. Footnote 68 In the context of a de-listing request, we find that the question to be assessed is whether the loss of privacy results or is likely to result in significant harm to the Complainant that outweighs the public interest in being able to access those articles via a search of the Complainant’s name.
8. To answer this question, we will first determine whether the accessibility of the information in response to a search for the Complainant’s name would cause significant harm to the Complainant.
9. If so, we will then consider whether this harm outweighs a public interest in the search results remaining available through Google’s search engine by searching the Complainant’s name.

Significant harm to the Complainant’s safety or dignity

1. For the reasons set out below, given the sensitivity of the personal information displayed in the search results, we find that the accessibility of the search results in question in response to a search for the Complainant’s name causes significant harm to the Complainant.
2. In the context of privacy breach notification, PIPEDA defines ‘significant harm’ under subsection 10.1(7) of PIPEDA which states that: > “For the purpose of this section, significant harm includes bodily harm, humiliation, damage to reputation or relationships, loss of employment, business or professional opportunities, financial loss, identity theft, negative effects on the credit record and damage to or loss of property.”
3. We find that this definition, which includes harms to an individual’s safety and to their dignity, is useful in assessing the significant harms in the context of subsection 5(3) as well.
4. We note that Quebec’s Law 25 provides for the removal of information attached to an individual’s name from search results in certain circumstances, notably when there is the existence of a “serious injury in relation to [a person’s] right to the respect of his reputation or privacy”. Footnote 69
5. In assessing the significance of the harm in this specific case, we also find the Supreme Court’s reasons in Sherman Estate Footnote 70 to be helpful: dissemination of sensitive information can be an affront to an individual’s dignity where the information in question is highly sensitive and strikes at the core identity of the individual concerned. Given the nature of the information at issue in this case, we also find it relevant that it strikes at the core identity of the Complainant.
6. The Complainant states that Google’s disclosure of the news articles in the list of results returned in response to a search for their name has caused them to suffer, and continue to suffer, harms such as physical assault, employment discrimination, and persistent fear, particularly as new people enter their life.
7. In the original complaint to the OPC, the Complainant’s representative described these harms in detail: > “… A landlord of an apartment for which [the Complainant] had applied later called [the Complainant], inviting [them] to come back to visit the property, only to punch [the Complainant] in the face and send [the Complainant] tumbling down a flight of stairs, while yelling at [the Complainant] that [they do not] rent to rapists. The incident confirmed [the Complainant’s] fears, and deepened the anxiety that has come to permeate [the Complainant’s] interactions with others. > > [The Complainant] began to experience similar difficulties in securing employment, and even job interviews, and [is] convinced that [their] profile is having at least some effect in this respect. [The Complainant’s] everyday social relationships have also been undermined by Google’s search profile.”
8. Additionally, during the course of our investigation, the Complainant’s representative informed the OPC that one of the Complainant’s coworkers went to their supervisor to attempt to have the Complainant fired on the basis of their search profile.
9. In our view, the significant harms described by the Complainant are consistent with other reports relating to discrimination, stigmatization, and violence that individuals living with HIV in Canada have experienced. Footnote 71
10. The personal information displayed in the search results about the Complainant is extremely sensitive. The information relates to the Complainant’s sexual orientation, sexual activities that the Complainant engaged in, HIV status, and a past criminal charge that has since been stayed.
11. We also note that the harms described above fall under PIPEDA ’s definition of ‘significant harm’ as they include instances of bodily harm, humiliation, damage to reputation or relationships, and loss of employment opportunities. Although not necessary to establish a right to de-listing under PIPEDA, it is noteworthy that the harms in this case are so serious that they constitute an affront to the Complainant’s dignity, by striking at the Complainant’s core identity.

Public interest in having the information available through a search of the Complainant’s name

1. Having found a significant harm to the Complainant’s safety and dignity, we now consider whether there is a public interest in having the information available through a search of the Complainant’s name and if so, whether the harm to the Complainant outweighs that public interest.
2. For the reasons set out below, we find that there is only a limited public interest in continuing to display these search results when the Complainant’s name is searched on Google’s search engine, and that the significant harm to the Complainant outweighs this limited public interest.
3. To contemplate the degree of public interest in the articles remaining accessible in response to a search for the Complainant’s name, we developed a non-exhaustive list of factors to consider. These factors are informed by the OPC ’s Draft Position Paper but also by other de-listing frameworks developed in the European Union, the UK and Quebec. Footnote 72
4. In the European Union, the GDPR includes the right to erasure, which has been interpreted to include the right to de-listing. The following elements are considered in assessing the balance between an individual’s privacy rights and the right of the public in having access to the information through a search for the individual’s name: Footnote 73
   1. he or she does not play a role in public life;
   2. the information at stake is not related to his or her professional life but affects his or her privacy;
   3. the information constitutes hate speech, slander, libel or similar offences in the area of expression against him or her pursuant to a court order;
   4. the data appears to be a verified fact but is factually inaccurate;
   5. the data relates to a relatively minor criminal offence that happened a long time ago and causes prejudice to the data subject.
5. In the United Kingdom, the Information Commissioner’s Office has adopted a similar approach and considers the following elements when assessing de-listing requests: Footnote 74
   1. Does the search result relate to a natural person – i.e. an individual – and does it come up against a search on the individual’s name?
   2. Does the individual play a role in public life?
   3. Is the subject of the search result a child?
   4. Is the data accurate?
   5. Does the data relate to the individual’s working life?
   6. Is the information ‘sensitive’ for the purposes of the Data Protection Act?
   7. Is the data up to date? Is it being made available for longer than necessary?
   8. Is the data processing causing prejudice to the individual? Is it having a disproportionately negative impact on the individual’s privacy?
   9. Does the search result link to information that puts the individual at risk?
   10. On what basis was the information published originally?
   11. Was the original content published in a journalistic context?
   12. Does the publisher of the data have a legal power – or a legal obligation – to make the personal data publicly available?
   13. Does the data relate to a criminal offence?
6. In Quebec, section 28.1 of the Act respecting the Protection of Personal Information in the Private Sector provides that the following elements will be considered in assessing the public interest and freedom of expression: Footnote 75
   1. the fact that the person concerned is a public figure;
   2. the fact that the information concerns the person at the time the person is a minor;
   3. the fact that the information is up to date and accurate;
   4. the sensitivity of the information; Footnote 76
   5. the context in which the information is disseminated;
   6. the time elapsed between the dissemination of the information and the request made under this section; and
   7. where the information concerns a criminal or penal procedure, the obtaining of a pardon or the application of a restriction on the accessibility of records of the courts of justice.
7. Having reviewed these frameworks, we find that the following factors should be considered in assessing the public interest, if any, in making the information available through a search of an individual’s name:
   1. Whether the individual is a public figure (e.g. a public office holder, a politician, a prominent business person, etc.);
   2. Whether the information relates to an individual’s working or professional life as opposed to their private life;
   3. Whether the information relates to an adult as opposed to a minor;
   4. Whether the information relates to a criminal charge that has resulted in a conviction or where the charges were stayed due to delays in the criminal proceedings;
   5. Whether the information is accurate and up to date;
   6. Whether the ability to link the information with the individual is relevant and necessary to the public consideration of a matter under current controversy or debate;
   7. The length of time that has elapsed since the publication of the information and the request for de-listing.
8. This list of factors is not exhaustive, and there may be other circumstances that need to be assessed in the context of a particular case.
9. Finally, it is important to emphasize that when assessing the public interest in the search results, the question is not whether the underlying information serves the public interest in the abstract, but whether its continued availability in search results for searches of the Complainant’s name is in the public interest.
10. Applying these factors to the matter at hand, we find that there is an overall limited public interest that is outweighed by the significant harm caused to the Complainant’s safety and dignity.
11. With respect to the first element, the Complainant is not a public figure, thereby limiting the public interest.
12. A media organization responsible for publishing one of the articles in question argued that the public interest in an individual’s name (and any associated journalistic content) may change over time, for example where an individual takes on a public role in the future. While we agree that an individual’s circumstances may change in the future, the framework must be applied to the facts as they exist at the time and not on the basis of hypothetical future developments. Should a private individual become a public figure, the assessment of delisting new articles would be different.
13. With respect to the second element, the information at issue relates to the Complainant’s private life. None of the circumstances relate to business or employment matters, thereby limiting the public interest.
14. With respect to the third element, the information at issue relates to the Complainant when they were an adult. This supports a greater public interest than if the information related to a minor but, without the demonstration of additional public interest elements, this should not be sufficient on its own to outweigh a significant harm to an individual’s dignity.
15. With respect to the fourth element, while the articles relate to a criminal charge, the proceedings were stayed shortly after the charge was laid. Proceedings can be stayed by the Crown for various reasons when the available evidence does not meet the ‘reasonable prospect of conviction’ standard, or the prosecution is assessed as not being in the public interest. Footnote 77 We note that after criminal proceedings have been stayed by the Crown for a year, as was the case in the present instance, they are “deemed never to have been commenced” under the Criminal Code.
16. The Complainant was not convicted, nor were the charges stayed by the Court due to undue delay in the proceedings, which could have supported a greater public interest in the matter. The charges were stayed at an early stage by the Crown prosecutor as the relevant Public Health Authority was satisfied that the Complainant did not pose a current risk to public health.
17. In 2017, the federal Department of Justice (“ DOJ ”) published a study regarding the criminal justice system’s response to HIV non-disclosure. Footnote 78 The study noted that the criminal law applies to HIV positive persons where they fail to disclose, or misrepresent, their HIV status prior to engaging in sexual activity that poses a realistic possibility of transmission. With respect to the risk of transmission for circumstances like those that led to the Complainant’s charge, the DOJ concluded that the criminal law should generally not apply, because the realistic possibility of transmission test is likely not met in these circumstances. Footnote 79
18. Moreover, in prosecutorial directives issued since 2017 by the Attorneys General of Canada, Quebec, Ontario and British Columbia, prosecutors are directed not to issue charges for non- HIV disclosure where there is no realistic possibility of transmission.
19. It is therefore unlikely that the charge would be laid today in light of the federal and provincial directives, mentioned above, to not prosecute HIV non-disclosure cases where there is no realistic possibility of transmission.
20. The staying of the criminal charge in these circumstances therefore further reduces the public interest in the matter.
21. With respect to the fifth element, with a few exceptions, the articles do not reflect the fact that the Crown prosecutor stayed the charge at an early stage. As a result, the articles give the erroneous impression that the Complainant may have been convicted of a serious crime or that the Complainant posed a risk to public health. This lack of proper context therefore limits the public interest in making those articles available through a search of the Complainant’s name.
22. A few of the articles are more up to date as they indicate that the Crown prosecutor stayed the charge and that counsel for the Complainant stated that there was no reasonable prospect of a conviction. The public interest in those articles is therefore greater than that of the others but we note that since the publication of these articles, there have been prosecutorial directives against charges where there is no realistic possibility of transmission (as discussed at paragraph 120).
23. With respect to the sixth element, we find that the ability to link the information with the Complainant is not relevant and necessary to the public consideration of a matter under current controversy or debate. We accept that some of the information in the articles at issue in this complaint may relate to public debate concerning the criminal law’s treatment of allegations of HIV non-disclosure, Footnote 80 including, for example, how often charges are laid and whether such charges are stayed. As such, we see value in the public being able to find the articles via a search using terms related to this issue generally. However, the public’s ability to find the articles in response to a search for the Complainant’s name does not meaningfully contribute to such debates, as the focus of the debate is at a broader societal level (emphasis added). This therefore limits the public interest.
24. Finally, with respect to the seventh element, we find that the significant passage of time since the publication of the information further limits the public interest in making the information available through a search of the Complainant’s name.
25. Given our assessment of the factors above, we find that there is a limited public interest in being able to find the articles in question based on a search for the Complainant’s name. We accept that a few of the articles give rise to a slightly higher public interest as they are more up to date than the others. However, we find that in all cases, the public interest is outweighed by the significant harm caused to the Complainant’s dignity and safety.

Conclusion on Issue 2

1. In the specific circumstances of this case, we find that the significant harm that results from all of the articles in question being returned by Google in response to a search for the Complainant’s name outweighs, and is disproportionate to, the limited public interest in being able to access those articles via a search for the Complainant’s name. We therefore find that a reasonable person would consider it inappropriate that Google continues to disclose these articles in response to searches for the Complainant’s name, such that it contravenes subsection 5(3) of PIPEDA.

Recommendation

1. In light of our finding that Google contravened PIPEDA, and continues to contravene PIPEDA by returning, in search results, the articles in question in response to a search for the Complainant’s name, we now turn to considering the appropriate remedy. For the reasons set out below, we recommend that Google de-list the articles at issue Footnote 81 from searches for the Complainant’s name.
2. As noted above, the Complainant has requested that Google de-list the articles at issue in this complaint from the list of search results returned in response to a search for their name. The Complainant asserts that de-listing is a narrow remedy because it does not remove the information from public access generally, nor from Google’s search engine specifically.
3. In addition to the submissions considered in the course of our consultation for the Draft Position Paper, we sought submissions from the media organizations responsible for publishing the articles at issue in this complaint. Although several organizations refused to participate in the investigation, one major Canadian media organization provided the OPC with submissions that generally aligned with those of Google.
4. That organization submitted that requiring Google to de-list journalistic content would infringe upon both the section 2(b) Charter rights of the media that make the content available for Google indexing “as part of the online publication process” and of members of the public conducting searches for such content. It further asserted that there was a public interest in maintaining a complete archival record that is accessible over the internet in addition to ensuring that search results are reliable and complete.
5. In contrast, the Complainant has argued that the availability of de-listing may in fact support freedom of expression in certain contexts, for example by encouraging individuals to share their opinion with the media on matters of public controversy and debate if they know that their comments would not forever be attached to their name in a Google search. While we are not assessing at this time whether de-listing would be available under PIPEDA in such situations, we recognize that there are a variety of different views on the possible impact that de-listing search results may have on freedom of expression in different contexts.

Proportionate balancing of Charter values and PIPEDA ’s statutory objectives

1. As mentioned at the beginning of our analysis, when Charter protections are engaged by an exercise of discretion by an administrative decision-maker, such as the Privacy Commissioner, the decision-maker must balance the statutory objectives of the legislation that they oversee, in this case the objectives of PIPEDA, with the relevant Charter protections. As a result, we engage below in a proportional balancing of these objectives with the relevant Charter protections, namely freedom of expression and privacy. Footnote 82
2. One media organization that published such articles has argued that de-listing the results from the Complainant’s name in Google’s search engine would create an impression that Google search results are not reliable or complete. While we recognize that Google’s search engine, and search engines in general, provide an invaluable tool for navigating the internet, Google’s search results should be distinguished from an objective historical or archival record. Google’s search engine’s algorithms maximize relevancy according to Google, which relies on its search engine service to generate advertising revenue and profit. As noted earlier in this report, Google already removes or deprioritizes links from its search results for a variety of different reasons, including where the search results are not necessarily unlawful. Google’s search results ranking is also subject to manipulation; for example, many businesses provide Search Engine Optimization services, which can involve configuring a website in a way for it to rank higher in Google’s search engine results.
3. As discussed above, we find that there is a limited public interest in the accessibility of the specific news articles at issue in response to a Google search for the Complainant’s name.
4. In contrast, the Complainant’s privacy interests at issue in this case are significant. The personal information contained in the articles concerns the Complainant’s HIV status, sexual orientation, and sexual activities that the Complainant engaged in, which are examples of some of the most sensitive types of personal information, striking at the core of an individual’s identity and dignity.
5. We accept that the Complainant’s life has been adversely impacted, in a significant manner, by the ability of any member of the public to access these articles by searching the Complainant’s name in Google. This has caused the Complainant to suffer, and continue to suffer, physical assault, employment discrimination and “persistent fear, particularly as new people enter the Complainant’s life”. The continued listing of the articles in response to a search for the Complainant’s name is having a profound impact on the Complainant’s autonomy, dignity and right to privacy. The Supreme Court of Canada has stated that these “are fundamental values that lie at the heart of a democracy” and that privacy plays a “fundamental role … in the preservation of a free and democratic society”. Footnote 83
6. The remedy requested by the Complainant is limited to de-listing of the articles at issue when the Complainant’s name is searched in Google’s search engine. Although this was the specific remedy requested by the Complainant, it is one of several available remedies. In addition to de-listing (which would remove the link between the articles at issue in the complaint and the Complainant’s name, such that the articles would not be returned in response to a search for their name), there is also de-indexing (which involves removing the articles from Google’s search index entirely, such that the articles would not be provided in response to any search terms). De-indexing is therefore a much broader remedy than de-listing since search results that have been de-listed from one search term can still be found via Google by entering different search terms.
7. The de-listed articles would also remain available on the news organizations’ websites; they would not be removed from public access. All that is being removed is a link between the Complainant’s name and the articles in Google’s search engine. We find that de-listing in this manner would not unduly restrict any political or policy discourse that could arise based on the general nature of the events discussed in the articles.
8. Another option could be to recommend that Google lower the prominence of the articles at issue in the complaint, so that the articles are not returned at the top of the list of search results that are displayed in response to a search for the Complainant’s name. Although we considered whether this option would resolve the Complainant’s concerns, we find that the articles remaining retrievable in Google’s search engine in response to a search for the Complainant’s name, even if found on a later page of the search results, would still risk causing significant harm to the Complainant, which would not be outweighed by the limited public interest, as discussed in this report.
9. In the circumstances of this particular case, de-listing the articles represents an appropriate balance of the Complainant’s privacy and reputational interests protected by PIPEDA, and the equally important values protected by freedom of expression. In the present case, our recommendation to de-list the articles at issue from a search for the Complainant’s name significantly furthers the objectives of PIPEDA, a quasi-constitutional statute, by giving the Complainant more control over the display of their highly sensitive personal information in Google search results. It would also further the fundamental values of individual autonomy, dignity and privacy by providing the Complainant with the ability to control when and how to disclose this highly sensitive personal information. Conversely, a recommendation to de-list the articles from a search for the Complainant’s name has a minimal impact on freedom of expression in light of the limited public interest in the articles being attached to the Complainant’s name in Google’s search results, and the fact that the articles would remain accessible via Google search using other search terms, and on the internet generally. As the Complainant noted in their submissions to the OPC, de-listing the articles in question would only mean that the public would be unable to access the articles through a search for the Complainant’s name; it would not prevent the public from accessing the information generally.
10. As such, we recommend that Google de-list the articles at issue from a search for the Complainant’s name, whether their full name or a part of their name. We find that this recommendation reflects an appropriate balance of PIPEDA ’s statutory objectives and the Charter protections at issue in this case.
11. Additionally, should any other search results that reference the charge against the Complainant appear in response to a search of the Complainant’s name, either at the time of issuance of this report or in the future, to comply with subsection 5(3) of PIPEDA, we strongly encourage Google to consider any request from the Complainant to de-list such search results, taking into consideration the guidance provided in this report.
12. Finally, given our finding that there are circumstances where returning specific search results in response to a search for an individual’s name for the purpose of indexing the internet and displaying search results is inappropriate under PIPEDA, we encourage Google to review its removal policy to ensure that it complies with subsection 5(3), with consideration of the relevant case law and the guidance provided in this report.

Google’s Response

1. Google did not agree to de-list the articles at issue from a search for the Complainant’s name.
2. Google is of the view that direction and guidance from the courts on several important questions is required before it would be appropriate for news articles to be de-listed from search results. Google highlights that these questions include whether PIPEDA provides such a right, under what circumstances such a right could be invoked, whether such a right infringes section 2(b) of the Charter, and whether such infringement can be justified.

Conclusion

1. Given that Google did not implement our recommendation to de-list the articles at issue, we find this aspect of the complaint to be well-founded (and unresolved).

Footnotes

Footnote 1 The Google search was conducted on July 10, 2025.

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Footnote 2 Paragraph 12.2(1)(d) of PIPEDA states that the Commissioner may discontinue the investigation of a complaint if the Commissioner is of the opinion that the matter is already the object of an ongoing investigation under this Part.

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Footnote 3 De-listing content enables the removal of one or more results provided by a search engine following a certain search query. De-listing from Google would not delete the information from the source website or from Google’s search index. The de-listed search result content would remain accessible in Google search by using other search terms, or by going directly to the source website (see paras. 40-41 of this Report of Findings).

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Footnote 4 Google, How news works on Google.

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Footnote 5 Global Stats, Netmarket Share Stat Counter Search Engine Market Share.

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Footnote 6 Global Stats, Stat Counter, Search Engine Market Share Canada, July 2023 to July 2024.

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Footnote 7 Siteefy, How Many Websites Are There in the World?

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Footnote 8 Google, About Google Ads.

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Footnote 9 See Google, How Search Works.

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Footnote 10 Google, How Google Search organizes information.

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Footnote 11 Google, How Google Search Works.

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Footnote 12 Google, Refresh Outdated Content tool.

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Footnote 13 Google, Automatically generating and ranking search results.

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Footnote 14 In 2023, Google’s revenue amounted to 305.6 billion U.S. dollars, which of 237.8 billion U.S. dollars was made by advertising revenue. See Statista, Annual Revenue of Google from 2002 to 2023, May 22, 2024.

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Footnote 15 Google, About Google Ads.

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Footnote 16 Google, for instance, offers a service which allows users to create their own websites for personal or business use. See Google, Create, name, delete, or copy a site.

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Footnote 17 Google, Remove explicit or intimate personal images from Google.

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Footnote 18 Google Search Central, Google Search Essentials.

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Footnote 19 Google, Maximize access to information; Google, Request to have your personal content removed from Google Search; Google, Content policies for Google search.

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Footnote 20 C-131/12.

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Footnote 21 Regulation (EU) 2016/679.

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Footnote 22 Google, Personal Data Removal Request Form.

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Footnote 23 Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González, C-131/12, at paras. 92, 94, 97.

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Footnote 24 Google, Requests to delist content under European privacy law (as of May 20, 2025).

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Footnote 25 Google Search Central, Google Search Essentials; Google Search Central, Spam policies for Google web search.

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Footnote 26 The Guardian, Haunted by a mugshot: how predatory websites exploit the shame of arrest, June 12, 2018.

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Footnote 27 See Google, How news works on Google.

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Footnote 28 See Google, Publisher Center Help, How we rank news content: Ranking in Google News is determined algorithmically by a range of factors, including: Relevance of content; Prominence; Authoritativeness; Freshness; Usability; Location; Language.

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Footnote 29 Reference re Subsection 18.3(1) of the Federal Courts Act, 2021 FC 723, at para. 57.

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Footnote 30 Ibid, at para. 59.

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Footnote 31 Ibid, at para. 89.

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Footnote 32 Ibid, at para. 89.

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Footnote 33 In a 2:1 decision, Google LLC v. Canada (Privacy Commissioner), 2023 FCA 200 (CanLII), para. 95.

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Footnote 34 Google LLC v. Canada (Privacy Commissioner), 2023 FCA 200, at para. 58.

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Footnote 35 One of the media organizations ultimately refused to answer our questions, on the basis that they disagreed that the OPC had jurisdiction to investigate the complaint.

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Footnote 36 OPC, Draft OPC Position on Online Reputation, January 26, 2018.

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Footnote 37 Doré v. Barreau du Quebec, 2012 SCC 12, (Doré) at paras. 55-58.

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Footnote 38 Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401, 2013 SCC 62, (United Food and Commercial Workers) at para. 19.

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Footnote 39 Canada, Task Force on Electronic Commerce, The Protection of Personal Information: Building Canada’s Information Economy and Society, (Industry Canada, 1998), (“ Building Canada’s Information Economy and Society ”) p. 2.

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Footnote 40 Ibid, p. 5.

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Footnote 41 Directive 95/46/ EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ 1995, L 281, (“ EU Data Protection Directive”).

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Footnote 42 We note that on January 15th, 2024, the European Commission concluded that Canada continued to provide an adequate level of data protection to the GDPR. While the EU ’s recent adequacy finding does not specifically mention search removals, on page 62 of its report on Canada, the European Commission, citing the Draft OPC Position on Online Reputation, noted that a relevant development in Canada’s data protection framework was that “while PIPEDA in principle does not create a separate right to deletion, the OPC has indicated that a combination of provisions may create rights for individual/obligations for organizations to delete personal information”. Article 45(3) of the GDPR requires adequacy decisions to be reviewed every four years. For the concerns leading to the adoption of PIPEDA see: Canada, House of Commons, Standing Committee on Industry, Minutes of Proceedings and Evidence, 36th Parl, 1st Sess, No. 076 (1 December 1998), INDY 36 -1 No. 076, p. 1605 (Hon. John Manley), at p. 414-415; Canada, House of Commons, Standing Committee on Industry, Minutes of Proceedings and Evidence, 36th Parl, 2nd Sess, No. 091 (2 March 1999), INDY 36-1, No. 091, at p. 0930 (Bennett).

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Footnote 43 Building Canada’s Information Economy and Society, p. 2.

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Footnote 44 Section 3 of PIPEDA.

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Footnote 45 United Food and Commercial Workers, at para. 13.

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Footnote 46 Ibid, at para. 20.

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Footnote 47 Ibid, at para. 21.

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Footnote 48 Canada, House of Commons, Standing Committee on Industry, Minutes of Proceedings and Evidence, 36th Parl, 1st Sess, No. 076 (1 December 1998), INDY 36 -1 No. 076, p. 1545 (Manley), 410. See also, Building Canada’s Information Economy and Society, p. 13.

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Footnote 49 Building Canada’s Information Economy and Society, p. 13, Building Canada’s Information Economy and Society; Canada, House of Commons Debates, vol. 135, No. 137 (36-1), Oct. 19, 1998, at p. 9076 (Manley).

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Footnote 50 Nammo v. TransUnion of Canada Inc., 2010 FC 1284, at para. 77.

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Footnote 51 Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130, (Hill) at para. 120.

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Footnote 52 Draft OPC Position on Online Reputation, OPC, January 26, 2018.

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Footnote 53 Canada (Privacy Commissioner) v Facebook Inc., 2024 FCA 140 at para 62.

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Footnote 54 In our Draft OPC Position on Online Reputation, we use the term “de-indexing” rather than “de-listing” to refer to the process by which a particular webpage, image, or other online resource is removed from the results returned by a search engine when an individual’s name is entered as the search term. After further consideration, we are of the view that “de-listing” is the more precise and accurate term to refer to this process.

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Footnote 55 Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927, at p. 969; Ford v. Quebec (Attorney General), [1988] 2 SCR 712, at para. 59 (“ Ford ”).

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Footnote 56 Edmonton Journal v. Alberta (Attorney General), [1989] 2 SCR 1326, at p. 1339-1340 (“ Edmonton Journal ”); R. v. National Post, [2010] 1 SCR 477, at para. 28.

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Footnote 57 United Food and Commercial Workers.

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Footnote 58 Hill, at para. 107.

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Footnote 59 Grant v. Torstar Corp, [2009] 3 < SCR 640, at para. 51.

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Footnote 60 R. v. Jarvis, 2019 SCC 10, at paras. 41 and 63.

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Footnote 61 Sherman Estate v. Donovan, 2021 SCC 25, (Sherman Estate).

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Footnote 62 OPC, Guidance on inappropriate data practices: Interpretation and application of subsection 5(3), May 24, 2018.

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Footnote 63 Turner v. Telus Communications Inc., 2005 FC 1601, (Telus) at para. 48, aff’d 2007 FCA 21.

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Footnote 64 Eastmond v. Canadian Pacific Railway, 2004 FC 852, (Eastmond) at para. 131; Telus, at para. 48.

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Footnote 65 A.T. v. Globe24h.com, 2017 FC 114, at para. 74, citing Telus, at para. 48.

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Footnote 66 Sherman Estate, at para 55.

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Footnote 67 OPC, Draft OPC Position on Online Reputation, January 26, 2018.

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Footnote 68 Eastmond, at para 131.

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Footnote 69 Quebec’s Act respecting the protection of personal information in the private sector, section 28.1.

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Footnote 70 Sherman Estate.

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Footnote 71 Study Findings: How does stigma and discrimination impact people living with HIV 's access to healthcare in BC?, Pacific AIDS Network; Accelerating our Response: Government of Canada Five-Year Action Plan on Sexually Transmitted and Blood-Borne infections, Public Health Agency of Canada, July 17, 2019.

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Footnote 72 See Europe’s General Data Protection Regulation, Regulation (EU) 2016/679 and the associated Guidelines 5/2019 on the criteria of the Right to be Forgotten in the search engines cases under the GDPR, and Quebec’s Act respecting the protection of personal information in the private sector, chapter P-39.1.

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Footnote 73 Guidelines 5/2019 on the criteria of the Right to be Forgotten in the search engines cases under the GDPR.

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Footnote 74 The ICO ’s Delisting Criteria.

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Footnote 75 Quebec’s Act respecting the protection of personal information in the private sector, section 28.1.

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Footnote 76 While Quebec’s law considers the sensitivity as a factor in assessing the severity of the injury and balancing it against the interest of the public interest in knowing this information or the interest of any person in expressing himself freely, we have considered this factor in the assessment of the significant harm to the Complainant.

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Footnote 77 2.3 Decision to Prosecute, Public Prosecution Service of Canada, March 7, 2023.

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Footnote 78 Criminal Justice System’s Response to Non-Disclosure of HIV: Part H: Summary of the Evidence and Conclusions, Department of Justice, December 1, 2017.

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Footnote 79 Criminal Justice System’s Response to Non-Disclosure of HIV: Part H: Summary of the Evidence and Conclusions, Department of Justice, December 1, 2017.

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Footnote 80 Change the Code: Reforming Canada’s Criminal Code to Limit H.I.V. Criminalization, Canadian Coalition to Reform HIV Criminalization (CCRHC), July 2022; What We Heard Report, HIV non-disclosure public consultation, Department of Justice Canada, 2023.

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Footnote 81 The articles at issue are listed in a confidential appendix provided to Google and the Complainant.

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Footnote 82 Doré, at paras. 55-58.

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Footnote 83 United Food and Commercial Workers, at para. 19.

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Table of Contents

Overview

Background

The complaint

Google and its search engine service

Federal Court and Federal Court of Appeal confirm OPC ’s jurisdiction

Methodology

Analysis

The objectives of PIPEDA

Consent

Issue 1: Is Google contravening Accuracy requirements under Principle 4.6 of Schedule 1 of PIPEDA by continuing to display the search results in response to searches for the Complainant’s name?

Issue 2: Is Google contravening subsection 5(3) of PIPEDA by continuing to display the search results in response to searches for the Complainant’s name?

Recommendation

Google’s Response

Conclusion

Footnotes

Date modified:

2025-08-27