Teresa Scassa - Blog

Friday, 30 August 2019 08:19

Decision paves the way for federal riding associations in BC to be subject to BC's data protection laws

Written by  Teresa Scassa
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A ruling under B.C.’s Personal Information Protection Act (PIPA) will add new fuel to the fires burning around the issue of whether Canada’s federal political parties should have to comply with data protection laws. In Order P19-02, B.C. Privacy Commissioner Michael McEvoy rejected constitutional challenges and ruled that B.C.’s data protection law applied not just to provincial political parties (something it indisputably does), but also to electoral district associations in B.C. established under the Canada Elections Act. The decision means that the hearing into a complaint against the Courtenay-Alberni Riding Association of the New Democratic Party of Canada will now proceed. The riding association will still have the opportunity to argue, within the factual context of the complaint, that the application of specific provisions of PIPA place unacceptable limits on the right to vote and the freedom of expression under the Canadian Charter of Rights and Freedoms (the Charter).

There has been considerable attention paid to the relatively unregulated information handling practices of Canadian political parties in the last few years. A 2012 report commissioned by the Office of the Privacy Commissioner of Canada laid out the legal landscape. In the fall of 2018, federal, provincial and territorial privacy commissioners issued a joint call for meaningful privacy regulation of political parties in Canada. In late 2018, the House of Commons Standing Committee on Access to Information, Privacy and Ethics issued its report titled Democracy Under Threat: Risks and Solutions in the Era of Disinformation and Data Monopoly in which it recommended, among other things, that Canadian political parties be made subject to the Personal Information Protection and Electronic Documents Act (PIPEDA). Instead, the federal government chose to amend the Canada Elections Act to add some fairly tepid requirements for parties to have and make available privacy policies. Meaningful oversight and enforcement mechanisms are notably absent. In April 2019, Office of the Privacy Commissioner of Canada issued guidance for political parties on how to protect privacy. On August 7, Open Media conducted a review of the privacy policies of Canada’s federal political parties, measuring them against the guidelines issued by the OPC. The review reveals a fairly dismal level of privacy protection. As noted above, B.C.’s PIPA applies to B.C.’s provincial political parties. A review of those parties’ privacy practices earlier this year resulted in an investigation report that makes interesting reading.

It is within this context that a B.C. couple filed a complaint with the B.C. Office of the Information and Privacy Commissioner after each received and email from the NDP’s Courtenay-Alberni Riding Association inviting them to attend a meet and greet with the federal party’s leader. The couple wrote a letter to the local NDP seeking to know what information the party had on them, from whom it had been sourced, with whom it had been shared, and how the information had been and would be used. When they did not receive a satisfactory response, they filed a complaint with the OIPC. Since the NDP objected to the jurisdiction of the OIPC in the matter, the OIPC issued a notice of hearing to determine the preliminary issue of whether BC’s PIPA applied to the Courtney-Alberni Riding Association (the Organization).

The Organization made three constitutional arguments objecting to the jurisdiction of the OIPC. The first is that PIPA cannot apply to federally registered political entities because s. 41 of the Constitution Act, 1867 gives the federal government sole jurisdiction over the conduct of federal elections. The second is that PIPA cannot apply because other federal laws, including the Canada Elections Act and PIPEDA are paramount. The third argument was that, if PIPA were found to apply, to the extent that it did so, it would place unjustified limits on the right to vote and the freedom of expression guaranteed under the Charter. As noted above, on this third issue, the adjudicator ruled that there was an insufficient factual context to make a determination. Because Commissioner McAvoy ultimately decided that PIPA applies, the third question will be considered in the context of the hearing into the actual complaint.

Commisioner McAvoy noted that PIPA applies to every “organization” in BC. “Organization” is defined broadly to include: “a person, an unincorporated association, a trade union, a trust or a not for profit organization.” The Riding Association, as an unincorporated association, falls within this definition. He ruled that it made no difference that the organization was established under the constitution of a federal political party or that it is involved in federal politics. He rejected the Organization’s rather convoluted argument that since PIPEDA also applied to ‘organizations’, it precluded the application of BC’s statute. The Commissioner noted that because there is no commercial activity, PIPEDA did not apply to the collection, use or disclosure of personal information by the organization, and thus did not preclude the application of PIPA.

Commissioner McAvoy rejected the first constitutional argument on the basis that PIPA does not attempt to regulate the conduct of federal elections. PIPA’s purpose relates to “the regulation of the collection, use and disclosure of personal information by organizations.” (at para 45) It has nothing to do with any election-related issues such as the establishment of political parties, voting processes, or campaign financing. PIPA itself falls within provincial jurisdiction over “property and civil rights” in B.C. The Organization argued that by applying to federal riding associations in the province, it attempted to affect matters outside the province, but the adjudicator disagreed. He stated: “Analysis of incidental effects should be kept distinct from assessment of whether a provincial statute is validly enacted under the Constitution Act, 1867” (at para 52). He noted that in any event, incidental effects do not necessarily render a statute unconstitutional.

The Commissioner also rejected the paramountcy argument. The Organization argued that PIPA’s provisions conflicted with the Canada Elections Act, as well as the Telecommunications Act and Canada’s Anti-Spam Legislation (CASL) and frustrated a federal purpose and therefore could not apply to federal riding associations in B.C. Commissioner McEvoy found that there was no actual conflict between the federal and provincial laws. The Canada Elections Act imposes no substantive obligations around, for example, consent to the collection of personal information. It is not a situation where one statute says consent is not required and another says that it is. The Canada Elections Act is simply more permissive when it comes to personal information. Because the do-not-call list established under the Telecommunications Act does not address email communications, which is the subject matter of the actual complaint, there is no conflict with that law. Similarly, he found no conflict with the CASL. Although the CASL permits political parties or organizations to send emails with out consent to solicit donations, the email that was the subject of the complaint before the OIPC did not solicit a donation, but was rather an invitation to an event. As a result there is no conflict between the laws. Further, case law does not support the view that a conflict is found simply because a provincial law has more restrictive elements than a federal law. The Commissioner stated: “the fact that the Canada Elections Act and the two other federal laws take a permissive approach to use of certain personal information of electors does not of itself establish a conflict with PIPA’s requirements (even if one assumes, for discussion purposes only, that PIPA actually prohibits that which federal law permits.) . . . It is possible to comply with both PIPA and the federal laws [. . .]” (at para 79).

Commissioner McAvoy also rejected the argument that the application of PIPA would frustrate the federal purpose pursued under the Canada Elections Act. He found that the Organization had not adequately established the federal purpose nor had it managed to demonstrate how PIPA frustrated it.

Clearly this particular skirmish is far from complete. It is entirely possible that the Organization will challenge the Commissioner’s decision, and the matter may head to court. Nevertheless, the decision is an important one, as it raises the clear possibility that riding associations of federal political parties in BC might be held to a far stricter standard of data protection that that required of political parties elsewhere in Canada. This will increase the growing pressure on the federal government to take real, concrete steps to ensure that political parties are held to the same standards as private sector organizations when it comes to collecting, using and disclosing personal information. Given vast amounts of data available, the potential for intrusive and inappropriate uses, the controversies around profiling and targeting, and the growing risks of harm from data breaches, this is an unacceptable legislative gap.

 

Last modified on Friday, 30 August 2019 19:02
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