Canada’s Privacy Commissioner is taking Google to Federal Court in an effort to force the search giant to make old news reports about a person charged with failing to disclose their HIV status harder to find.

The Office of the Privacy Commissioner filed the application Friday, seeking a court order requiring Google to implement recommendations stemming from a years-long privacy investigation.

The case dates back to a 2017 complaint from an individual who had been arrested and charged after an allegation that they failed to disclose their HIV status before having sex. The Crown stayed the proceedings shortly after the charge was laid after the relevant public health authority determined the individual did not pose a current risk to public health. 

Despite the charge being stayed, news reports about the case continued to appear prominently when the person's name was searched on Google. The complainant alleged the results had led to physical assault, lost employment opportunities and severe social stigma. 

The Privacy Commissioner concluded last year that Google was violating the Personal Information Protection and Electronic Documents Act by continuing to return the articles in searches for the individual's name.

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The regulator acknowledged the articles themselves were not inaccurate when published. However, it found that most had never been updated to say the charge was stayed and could therefore leave readers with a misleading impression. The Commissioner also noted that federal, Quebec, Ontario and British Columbia prosecutors have since adopted directives generally discouraging HIV non-disclosure prosecutions where there is no realistic possibility of transmission.

The Commissioner recommended Google “de-list” the articles when users search the complainant's name. That would not remove the news reports from the internet. They would remain on the publishers' websites and could still be located through other Google searches. 

Google refused, arguing that whether Canadian privacy law creates such a right to de-list lawful information should be decided by the courts. Google has also raised Charter concerns, arguing that requiring it to suppress lawful, publicly available material from search results could infringe freedom of expression. 

The dispute could have implications well beyond the individual case by helping determine whether Canada effectively has a limited version of Europe's so-called “right to be forgotten”, and how that right should be balanced against freedom of expression and public access to legitimate news reporting.

Under current privacy law, the Commissioner cannot simply order Google to comply, which is why the regulator is now asking the Federal Court to enforce its recommendation.