Balancing Privacy, Dignity And Expression: The Case Against Google Search Results

Privacy reform in Canada has been advancing slowly. However, the recent appointment of Evan Solomon as Minister of Artificial Intelligence and Digital Innovation ("Minister") signals a renewed federal focus on modernizing Canada's nearly 25-year-old privacy framework. The Minister launched an AI Strategy Task Force along with a national sprint running from October 1, 2025, to October 31, 2025, that will shape Canada's approach to privacy regulation and digital innovation. Combined with the findings of a recent investigation by the Office of the Privacy Commissioner of Canada ("OPC"), there are growing indications that Canada may move toward recognizing a form of the "right to be forgotten", a principle currently established under the European Union's General Data Protection Regulation ("GDPR").

The OPC's recent investigation into Google signals that search engines may be required to suppress results when the harms to an individual's dignity and safety outweigh the public's interest in accessing the information.¹

The OPC's Investigation into Google's Search Engine

In June 2017, a complainant reached out to the OPC alleging that Google and its search engine service contravened the Personal Information and Electronic Documents Act ("PIPEDA"). The facts of the complaint outlined that the Google search engine displayed outdated articles, referencing an HIV-related criminal charge against the complainant, as results for a search of the complainant's name. Very few of the articles populated by the Google search engine addressed the fact that the criminal charges were stayed against the complainant after the relevant Public Health Authority determined that the individual did not pose a risk to public health.

Charter Balancing: Should Freedom of Expression Override Privacy Concerns?

The OPC's investigation grappled with the tension between the Charter's freedom of expression protection and the quasi-constitutional value of privacy.² Google characterized de-listing articles related to the complainant's HIV criminal charge as an unreasonable restraint on lawful freedom of expression.

The Supreme Court of Canada has emphasized the protection of reputation and dignity are the foundation of all Charter rights.³ The tension here lies in the fact that freedom of expression protects the dissemination of information, whereas the protection of reputation and dignity requires restricting that expression where it inflicts disproportionate personal harm.

Ultimately, the OPC's analysis turned on proportionality. Freedom of expression protects truth-seeking, expressive self-fulfillment and democratic participation, but the expressive value of publishing sensitive, outdated allegations in a name-based search was negligible. By contrast, the injury to the complainant's dignity and risk of serious harm were substantial. In this balance, the protection of privacy justifiably prevailed.

The Result: Google's Violation of PIPEDA Subsection 5(3)

The OPC found that Google satisfied its obligation under Principle 4.6 of Schedule 1 to present accurate and complete results as the search results truthfully displayed the contents of the linked articles. However, subsection 5(3) of PIPEDA presents a higher bar where the obligation is on Google, the search engine operator, to disclose personal information for a purpose that a reasonable person would consider appropriate.

There are limited circumstances in which a reasonable person would consider it inappropriate for a search engine to return, in response to a name search, results containing that individual's personal information. In the case at hand, the harms were profound; the complainant experienced loss of employment opportunities, physical assault and significant social stigma. In one instance, 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. This incident, alongside others, reaffirmed the complainant's fears about the reach of the news articles populated by a Google search of his name and deepened the anxiety the complainant had in everyday interactions.

Subsection 5(3) of PIPEDA necessitates balancing the individual's right to privacy with the organization's need to disclose personal information. The articles populated in the Google search results about the complainant revealed extremely sensitive personal information, including their sexual orientation, sexual activities, HIV status and that they were charged with a crime. Given the significant harms caused to the complainant's safety and dignity, the OPC held that Google's disclosure and the public interest in being able to access those articles through a search of the complainant's name, failed the subsection 5(3) proportionality test.

The OPC recommended that Google de-list the articles, thereby limiting certain search results attributable to the complainant's name, as a proportionate balance between PIPEDA's privacy rights and Charter-protected freedom of expression. The articles would still be accessible through the search engine; however, the articles would not appear from a simple name search. Google declined to adhere to the OPC's ruling, stating that only the courts should determine whether PIPEDA supports such a remedy.

Take-Aways for Business

While not absolute, subsection 5(3) of PIPEDA may ground de-listing of search engine results where disclosure of information in search engine results is disproportionate to legitimate public interest. Though Canada is moving slowly towards privacy reform, the appointment of the new Minister will likely bring a renewed national focus on the regulation of data protection and privacy.

*The authors would like to thank Torkin Manes' Articling Student Ilar Haydarian for her invaluable contributions in preparing this insight.

Footnotes

1 PIPEDA Findings #2025-002.

2 Canadian Charter of Rights and Freedoms, Section 2(b)

3 Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130 at para. 120.

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