Teresa Scassa - Blog

A recent Finding from the Office of the Privacy Commissioner of Canada contains a consideration of the meaning of “publicly available information”, particularly as it relates to social media profiles. This issue is particularly significant given a recent recommendation by the ETHI committee in its Report on PIPEDA reform. PIPEDA currently contains a very narrowly framed exception to the requirement of consent for “publicly available information”. ETHI had recommended amending the definition to make it “technologically neutral”. As I argued here, such a change would make it open-season for the collection, use and disclosure of social media profiles of Canadians.

The Finding, issued on June 12, 2018, came after multiple complaints were filed by Canadians about the practices of a New Zealand-based social media company, Profile Technology Ltd (PTL). The company had obtained Facebook user profile data from 2007 and 2008 under an agreement with Facebook. While their plan might have originally been to create a powerful search engine for Facebook, in 2011 they launched their own social media platform. They used the Facebook data to populate their platform with profiles. Individuals whose profiles were created on the site had the option of ‘claiming’ them. PTL also provided two avenues for individuals who wished to delete the profiles. If an email address had been part of the original data obtained from Facebook and was associated with the PTL profile, a user could log in using that email address and delete the account. If no email address was associated with the profile, the company required individuals to set up a helpdesk ticket and to provide copies of official photo identification. A number of the complainants to the OPC indicated that they were unwilling to share their photo IDs with a company that had already collected, used and disclosed their personal information without their consent.

The complainants’ concerns were not simply that their personal information had been taken and used to populate a new social media platform without their consent. They also felt harmed by the fact that the data used by PTL was from 2007-2008, and did not reflect any changes or choices they had since made. One complaint received by the OPC related to the fact that PTL had reproduced a group that had been created on Facebook, but that since had been deleted from Facebook. Within this group, allegations had been made about the complainant that he/she considered defamatory and bullying. The complainant objected to the fact that the group persisted on PTL and that the PTL platform did not permit changes to public groups and the behest of single individuals on the basis that they treated the group description “as part of the profile of every person who has joined that group, therefore modifying the group would be like modifying all of those people’s profiles and we cannot modify their profiles without their consent.” (at para 55)

It should be noted that although the data was initially obtained by PTL from Facebook under licence from Facebook, Facebook’s position was that PTL had used the data in violation of the licence terms. Facebook had commenced proceedings against PTL in 2013 which resulted in a settlement agreement. There was some back and forth over whether the terms of the agreement had been met, but no information was available regarding the ultimate resolution.

The Finding addresses a number of interesting issues. These include the jurisdiction of the OPC to consider this complaint about a New Zealand based company, the sufficiency of consent, and data retention limits. This post focuses only on the issue of whether social media profiles are “publicly available information” within the meaning of PIPEDA.

PTL argued that it was entitled to benefit from the “publicly available information” exception to the requirement for consent for collection and use of personal information because the Facebook profiles of the complainants were “publicly available information”. The OPC disagreed. It noted that the exception for “publicly available information”, found in ss. 7(1)(d) and 7(2)(c.1) of PIPEDA, is defined by regulation. The applicable provision is s. 1(e) of the Regulations Specifying Publicly Available Information, which requires that “the personal information must appear in a publication, the publication must be available to the public, and the personal information has to have been provided by the individual.”(at para 87) The OPC rejected PTL’s argument that “publication” included public Facebook profiles. In its view, the interpretation of “publicly available information” must be “in light of the scheme of the Act, its objects, and the intention of the legislature.” (at para 89) It opined that neither a Facebook profile nor a ‘group’ was a publication. It noted that the regulation makes it clear that “publicly available information” must receive a restrictive interpretation, and reflects “a recognition that information that may be in the public domain is still worthy of privacy protection.” (at para 90) The narrow interpretation of this exception to consent is consistent with the fact that PIPEDA has been found to be quasi-constitutional legislation.

In finding that the Facebook profile information was not publicly available information, the OPC considered that the profiles at issue “were created at a time when Facebook was relatively new and its policies were in flux.” (at para 92) Thus it would be difficult to determine that the intention of the individuals who created profiles at that time was to share them broadly and publicly. Further, at the time the profiles were created, they were indexable by search engines by default. In an earlier Finding, the OPC had determined that this default setting “would not have been consistent with users’ reasonable expectations and was not fully explained to users” (at para 92). In addition, the OPC noted that Facebook profiles were dynamic, and that their ‘owners’ could update or change them at will. In such circumstances, “treating a Facebook profile as a publication would be counter to the intention of the Act, undermining the control users otherwise maintain over their information at the source.” (at para 93) This is an interesting point, as it suggests that the dynamic nature of a person’s online profile prevents it from being considered a publication – it is more like an extension of a user’s personality or self-expression.

The OPC also noted that even though the profile information was public, to qualify for the exception it had to be contributed by the individual. This is not always the case with profile information – in some cases, for example, profiles will include photographs that contain the personal information of third parties.

This Finding, which is not a decision, and not binding on anyone, shows how the OPC interprets the “publicly available information” exception in its home statute. A few things are interesting to note:

· The OPC finds that social media profiles (in this case from Facebook) are different from “publications” in the sense that they are dynamic and reflect an individual’s changing self-expression

· Allowing the capture and re-use, without consent, of self-expression from a particular point in time, robs the individual not only of control of their personal information by of control over how they present themselves to the public. This too makes profile data different from other forms of “publicly accessible information” such as telephone or business directory information, or information published in newspapers or magazines.

· The OPC’s discussion of Facebook’s problematic privacy practices at the time the profiles were created muddies the discussion of “publicly available information”. A finding that Facebook had appropriate rules of consent should not change the fact that social media profiles should not be considered “publicly available information” for the purposes of the exception.

 

It is also worth noting that a complaint against PTL to the New Zealand Office of the Privacy Commissioner proceeded on the assumption that PTL did not require consent because the information was publicly available. In fact, the New Zealand Commissioner ruled that no breach had taken place.

Given the ETHI Report’s recommendation, it is important to keep in mind that the definition of “publicly accessible information” could be modified (although the government’s response to the ETHI report indicates some reservations about the recommendation to change the definition of publicly available information). Because the definition is found in a regulation, a modification would not require legislative amendment. As is clear from the ETHI report, there are a number of industries and organizations that would love to be able to harvest and use social media platform personal information without need to obtain consent. Vigilance is required to ensure that these regulations are not altered in a way that dramatically undermines privacy protection.

 

Published in Privacy

The pressure is on for Canada to amend its Personal Information Protection and Electronic Documents Act. The legislation, by any measure, is sorely out of date and not up to the task of protecting privacy in the big data era. We know this well enough – the House of Commons ETHI Committee recently issued a report calling for reform, and the government, in its response has acknowledge the need for changes to the law. The current and past privacy Commissioners have also repeatedly called for reform, as have privacy experts. There are many deficiencies with the law – one very significant one is the lack of serious measures to enforce privacy obligations. In this regard, a recent private member’s bill proposes amendments that would give the Commissioner much more substantial powers of enforcement. Other deficiencies can be measured against the EU’s General Data Protection Regulation (GDPR). If Canada cannot meet the levels of protection offered by the GDPR, personal data flows from the EU to Canada could be substantially disrupted. Among other things, the GDPR addresses issues such as the right to be forgotten, the right to an explanation of how automated decisions are reached, data portability rights, and many other measures specifically designed to address the privacy challenges of the big data era.

There is no doubt that these issues will be the subject of much discussion and may well feature in any proposals to reform PIPEDA that will be tabled in Parliament, perhaps as early as this autumn. The goal of this post is not to engage with these specific issues of reform, as important as they are; rather, it is to tackle another very basic problem with PIPEDA and to argue that it too should be addressed in any legislative reform. Simply put, PIPEDA is a dog’s-breakfast statute that is difficult to read and understand. It needs a top-to-bottom rewriting according to the best principles of plain-language drafting.

PIPEDA’s drafting has been the subject of commentary by judges of the Federal Court who have the task of interpreting it. For example, in Miglialo v. Royal Bank of Canada, Justice Roy described PIPEDA as a “a rather peculiar piece of legislation”, and “not an easily accessible statute”. The Federal Court of Appeal in Telus v. Englander observed that PIPEDA was a “compromise as to form” and that “The Court is sometimes left with little, if any guidance at all”. In Johnson v. Bell Canada, Justice Zinn observed: “While Part I of the Act is drafted in the usual manner of legislation, Schedule 1, which was borrowed from the CSA Standard, is notably not drafted following any legislative convention.” In Fahmy v. Royal Bank of Canada, Justice Roy noted that it was “hardly surprising” “[t]hat a party would misunderstand the scope of the Act.”

To understand why PIPEDA is such a mess requires some history. PIPEDA was passed by Parliament in 2000. Its enactment followed closely on the heels of the EU’s Data Protection Directive, which, like the GDPR, threatened to disrupt data flows to countries that did not meet minimum standards of private sector data protection. Canada needed private sector data protection legislation and it needed it fast. It was not clear that the federal government really had jurisdiction over private sector data protection, but it was felt that the rapid action needed did not leave time to develop cooperative approaches with the provinces. The private sector did not want such legislation. As a compromise, the government decided to use the CSA Model Code – a voluntary privacy code developed with multi-stakeholder input – as the normative heart of the statute. There had been enough buy-in with the Model Code that the government felt that it avoid excessive pushback from the private sector. The Code, therefore, originally drafted to provide voluntary guidance, was turned into law. The prime minister at the time, the Hon. Jean Chretien, did not want Parliament’s agenda overburdened with new bills, so the data protection bill was grafted onto another bill addressing the completely different issue of electronic documents (hence the long, unwieldy name that gives rise to the PIPEDA acronym).

The result is a legislative Frankenstein. Keep in mind that this is a law aimed at protecting individual privacy. It is a kind of consumer-protection statute that should be user-friendly, but it is not. Most applicants to the Federal Court under PIPEDA are self-represented, and they clearly struggle with the legislation. The sad irony is that if a consumer wants to complain to the Privacy Commissioner about a company’s over-long, horribly convoluted, impossible to understand, non-transparent privacy policy, he or she will have to wade through a statute that is like a performance-art parody of that same privacy policy. Of course, the problem is not just one for ordinary consumers. Lawyers and even judges (as evidenced above) find PIPEDA to be impenetrable.

By way of illustration, if you are concerned about your privacy rights and want to know what they are, you will not find them in the statute itself. Instead, the normative provisions are in the CSA Model Code, which is appended as Schedule I of the Act. Part I of the Act contains some definitions, a few general provisions, and a whole raft of exceptions to the principle of consent. Section 6.1 tells you what consent means “for the purposes of clause 4.3 of Schedule 1”, but you will have to wait until you get to the schedule to get more details on consent. On your way to the Schedule you might get tangled up in Part II of the Act which is about electronic documents, and thus thoroughly irrelevant.

Because the Model Code was just that – a model code – it was drafted in a more conversational style, and includes notes that provide examples and illustrations. For the purposes of the statute, some of these notes were considered acceptable – others not. Hence, you will find the following statement in s. 2(2) of PIPEDA: “In this Part, a reference to clause 4.3 or 4.9 of Schedule 1 does not include a reference to the note that accompanies that clause.” So put a yellow sticky tab on clauses 4.3 and 4.9 to remind you not to consider those notes as part of the law (even though they are in the Schedule).

Then there is this: s. 5(2) of PIPEDA tells us: “The word should, when used in Schedule 1, indicates a recommendation and does not impose an obligation.” So use those sticky notes again. Or cross out “should” each of the fourteen times you find it in Schedule 1, and replace it with “may”.

PIPEDA also provides in ss. 7(4) and 7(5) that certain actions are permissible despite what is said in clause 4.5 of Schedule 1. Similar revisionism is found in s. 7.4. While clause 4.9 of Schedule 1 talks about requests for access to personal information made by individuals, section 8(1) in Part 1of the Act tells us those requests have to be made in writing, and s. 8 goes on to provide further details on the right of access. Section 9 qualifies the right of access with “Despite clause 4.9 of Schedule 1….”. You can begin to see how PIPEDA may have contributed significantly to the sales of sticky notes.

If an individual files a complaint and is not satisfied with the Commissioner’s report of findings, he or she has a right to take the matter to Federal Court if their issue fits within s. 14, which reads:

 

14 (1) A complainant may, after receiving the Commissioner’s report or being notified under subsection 12.2(3) that the investigation of the complaint has been discontinued, apply to the Court for a hearing in respect of any matter in respect of which the complaint was made, or that is referred to in the Commissioner’s report, and that is referred to in clause 4.1.3, 4.2, 4.3.3, 4.4, 4.6, 4.7 or 4.8 of Schedule 1, in clause 4.3, 4.5 or 4.9 of that Schedule as modified or clarified by Division 1 or 1.1, in subsection 5(3) or 8(6) or (7), in section 10 or in Division 1.1. [My emphasis]

 

Enough said.

There are a number of very important substantive privacy issues brought about by the big data era. We are inevitably going to see PIPEDA reform in the relatively near future, as a means of not only addressing these issues but of keeping us on the right side of the GDPR. As we move towards major PIPEDA reform, however, the government should seriously consider a crisp rewrite of the legislation. The maturity of Canada’s data protection regime should be made manifest in a statute that no longer needs to lean on the crutch of a model code for its legitimacy. Quite apart from the substance of such a document, it should:

 

· Set out its basic data protection principles in the body of the statute, near the front of the statute, and in a manner that is clear, readable and accessible to a lay public.

· Be a free-standing statute that deals with data protection and that does not deal with unrelated extraneous matters (such as electronic documents).

 

It is not a big ask. British Columbia and Alberta managed to do it when they created their own substantially similar data protection statutes. Canadians deserve good privacy legislation, and they deserve to have it drafted in a manner that is clear and accessible. Rewriting PIPEDA (and hence renaming it) should be part of the coming legislative reform.

Published in Privacy

The issue of the application of privacy/data protection laws to political parties in Canada is not new – Colin Bennett and Robin Bayley wrote a report on this issue for the Office of the Privacy Commissioner of Canada in 2012. It gained new momentum in the wake of the Cambridge Analytica scandal when it was brought home to the public in a fairly dramatic way the extent to which personal information might be used not just to profile and target individuals, but to sway their opinions in order to influence the outcome of elections.

In the fallout from Cambridge Analytica there have been a couple of recent developments in Canada around the application of privacy laws to political parties. First, the federal government included some remarkably tepid provisions into Bill C-76 on Elections Act reform. These provisions, which I critique here, require parties to adopt and post a privacy policy, but otherwise contain no normative requirements. In other words, they do not hold political parties to any particular rules or norms regarding their collection, use or disclosure of personal information. There is also no provision for independent oversight. The only complaint that can be made – to the Commissioner of Elections – is about the failure to adopt and post a privacy policy. The federal government has expressed surprise at the negative reaction these proposed amendments have received and has indicated a willingness to do something more, but that something has not yet materialized. Meanwhile, it is being reported that the Bill, even as it stands, is not likely to clear the Senate before the summer recess, putting in doubt the ability of any amendments to be in place and implemented in time for the next election.

Meanwhile, on June 6 2018, the Quebec government introduced Bill no 188 into the National Assembly. If passed, this Bill would give the Quebec Director General of Elections the duty to examine and evaluate the practices of the provincial political parties’ collection, use and disclosure of personal information. The Director General must also assess their information security practices. If the Bill is passed into law, he will be required to report his findings to the National Assembly no later than the first of October 2019. The Director General will make any recommendations in this report that he feels are appropriate in the circumstances. The Bill also modifies laws applicable to municipal and school board elections so that the Director-General can be directed by the National Assembly to conduct a similar assessment and report back. While this Bill would not make any changes to current practices in the short term, it is clearly aimed at gathering data with a view to informing any future legislative reform that might be deemed necessary.

 

Published in Privacy

In the wake of the Cambridge Analytica scandal, Canada’s federal government has come under increased criticism for the fact that Canadian political parties are not subject to existing privacy legislation. This criticism is not new. For example, Prof. Colin Bennett and Robin Bayley wrote a report on the issue for the Office of the Privacy Commissioner of Canada in 2012.

The government’s response, if it can be called a response, has come in Bill C-76, the Act to amend the Canada Elections Act and other Acts and to make certain consequential amendments which was introduced in the House of Commons on April 30, 2018. This Bill would require all federal political parties to have privacy policies in order to become or remain registered. It also sets out what must be included in the privacy policy.

By way of preamble to this critique of the legislative half-measures introduced by the government, it is important to note that Canada already has both a public sector Privacy Act and a private sector Personal Information Protection and Electronic Documents Act (PIPEDA). Each of these statutes sets out rules for collection, use and disclosure of personal information and each provides for an oversight regime and a complaints process. Both statutes have been the subject of substantial critique for not going far enough to address privacy concerns, particularly in the age of big data. In February 2018, the House of Commons Standing Committee on Access to Information, Privacy and Ethics issued a report on PIPEDA, and recommended some significant amendments to adapt the statute to protecting privacy in a big data environment. Thus, the context in which the provisions regarding political parties’ privacy obligations are introduced is one in which a) we already have privacy laws that set data protection standards; b) these laws are generally considered to be in need of significant amendment to better address privacy; and c) the Cambridge Analytica scandal has revealed just how complex, problematic and damaging the misuse of personal information in the context of elections can be.

Once this context is understood, the privacy ‘obligations’ that the government proposes to place on political parties in the proposed amendments can be seen for what they are: an almost contemptuous and entirely cosmetic quick fix designed to deflect attention from the very serious privacy issues raised by the use of personal information by political parties.

First, the basic requirement placed on political parties will be to have a privacy policy. The policy will also have to be published on the party’s internet site. That’s pretty much it. Are you feeling better about your privacy yet?

To be fair, the Bill also specifies what the policy must contain:

(k) the party’s policy for the protection of personal information [will include]:

(i) a statement indicating the types of personal information that the party collects and how it collects that information,

(ii) a statement indicating how the party protects personal information under its control,

(iii) a statement indicating how the party uses personal information under its control and under what circumstances that personal information may be sold to any person or entity,

(iv) a statement indicating the training concerning the collection and use of personal information to be given to any employee of the party who could have access to personal information under the party’s control,

(v) a statement indicating the party’s practices concerning

(A) the collection and use of personal information created from online activity, and

(B) its use of cookies, and

(vi) the name and contact information of a person to whom concerns regarding the party’s policy for the protection of personal information can be addressed; and

(l) the address of the page — accessible to the public — on the party’s Internet site where its policy for the protection of personal information is published under subsection (4).

It is particularly noteworthy that unlike PIPEDA (or any other data protection law, for that matter), there is no requirement to obtain consent to any collection, use or disclosure of personal information. A party’s policy simply has to tell you what information it collects and how. Political parties are also not subject to any of the other limitations found in PIPEDA. There is no requirement that the purposes for collection, use or disclosure meet a reasonableness standard; there is no requirement to limit collection only to what is necessary to achieve any stated purposes; there is nothing on data retention limits; and there is no right of access or correction. And, while there is a requirement to identify a contact person to whom any concerns or complaints may be addressed, there is no oversight of a party’s compliance with their policy. (Note that it would be impossible to oversee compliance with any actual norms, since none are imposed). There is also no external complaints mechanism available. If a party fails to comply with requirements to have a policy, post it, and provide notice of any changes, it can be deregistered. That’s about it.

This is clearly not good enough. It is not what Canadians need or deserve. It does not even come close to meeting the standards set in PIPEDA, which is itself badly in need of an overhaul. The data resources and data analytics tools available to political parties have created a context in which data protection has become important not just to personal privacy values but to important public values as well, such as the integrity and fairness of elections. Not only are these proposed amendments insufficient to meet the privacy needs of Canadians, they are shockingly cynical in their attempt to derail the calls for serious action on this issue.

Published in Privacy

The post is the second in a series that looks at the recommendations contained in the report on the Personal Information Protection and Electronic Documents Act (PIPEDA) issued by the House of Commons Standing Committee on Access to Information and Privacy Ethics (ETHI). My first post considered ETHI’s recommendation to retain consent at the heart of PIPEDA with some enhancements. At the same time, ETHI recommended some new exceptions to consent. This post looks at one of these – the exception relating to publicly available information.

Although individual consent is at the heart of the PIPEDA model – and ETHI would keep it there – the growing number of exceptions to consent in PIPEDA is reason for concern. In fact, the last round of amendments to PIPEDA in the 2015 Digital Privacy Act, saw the addition of ten new exceptions to consent. While some of these were relatively uncontroversial (e.g. making it clear that consent was not needed to communicate with the next of kin of an injured, ill or deceased person) others were much more substantial in nature. In its 2018 report ETHI has made several recommendations that continue this trend – creating new contexts in which individual consent will no longer be required for the collection, use or disclosure of personal information. In this post, I focus on one of these – the recommendation that the exception to consent for the use of “publicly available information” be dramatically expanded to include content shared by individuals on social media. In light of the recent Facebook/Cambridge Analytica scandal, this recommended change deserves some serious resistance.

PIPEDA already contains a carefully limited exception to consent to the collection, use or disclosure of personal information where it is “publicly available” as defined in the Regulations Specifying Publicly Available Information. These regulations identify five narrowly construed categories of publicly available information. The first is telephone directory information (but only where the subscriber has the option to opt out of being included in the directory). The second is name and contact information that is included in a professional business directory listing that is available to the public; nevertheless, such information can only be collected, used or disclosed without consent where it relates “directly to the purpose for which the information appears in the registry” (i.e. contacting the individual for business purposes). There is a similar exception for information in a public registry established by law (for example, a land titles registry); this information can similarly only be collected, used or disclosed for purposes related to those for which it appears in the record or document. Thus, consent is not required to collect land registry information for the purposes of concluding a real estate transaction. However, it is not permitted to extract personal information from such a registry, without consent, to use for marketing. A fourth category of publicly available personal information is information appearing in court or tribunal records or documents. This respects the open courts principle, but the exception is limited to collection, use or disclosure that relates directly to the purpose for which the information appears in the record or document. This means that online repositories of court and tribunal decisions cannot be mined for personal information; however, personal information can be used without consent to further the open courts principle (for example, a reporter gathering information to use in a newspaper story).

This brings us to the fifth category of publicly available information – the one ETHI would explode to include vast quantities of personal information. Currently, this category reads:

e) personal information that appears in a publication, including a magazine, book or newspaper, in printed or electronic form, that is available to the public, where the individual has provided the information.

ETHI’s recommendation is to make this “technologically neutral” by having it include content shared by individuals over social media. According to ETHI, a “number of witnesses considered this provision to be “obsolete.” (at p. 27) Perhaps not surprisingly, these witnesses represented organizations and associations whose members would love to have unrestricted access to the contents of Canadians’ social media feeds and pages. The Privacy Commissioner was less impressed with the arguments for change. He stated: “we caution against the common misconception that simply because personal information happens to be generally accessible online, there is no privacy interest attached to it.” (at p. 28) The Commissioner recommended careful study with a view to balancing “fundamental individual and societal rights.” This cautious approach seems to have been ignored. The scope of ETHI’s proposed change is particularly disturbing given the very carefully constrained exceptions that currently exist for publicly available information. A review of the Regulations should tell any reader that this was always intended to be a very narrow exception with tightly drawn boundaries; it was never meant to create a free-for-all open season on the personal information of Canadians.

The Cambridge Analytica scandal reveals the harms that can flow from unrestrained access to the sensitive and wide-ranging types and volumes of personal information that are found on social media sites. Yet even as that scandal unfolds, it is important to note that everyone (including Facebook) seems to agree that user consent was both required and abused. What ETHI recommends is an exception that would obviate the need for consent to the collection, use and disclosure of the personal information of Canadians shared on social media platforms. This could not be more unwelcome and inappropriate.

Counsel for the Canadian Life and Health Insurance Association, in addressing ETHI, indicated that the current exception “no longer reflects reality or the expectations of the individuals it is intended to protect.” (at p. 27) A number of industry representatives also spoke of the need to make the exception “technologically neutral”, a line that ETHI clearly bought when it repeated this catch phrase in its recommendation. The facile rhetoric of technological neutrality should always be approached with enormous caution. The ‘old tech’ of books and magazines involved: a) relatively little exposure of personal information; b) carefully mediated exposure (through editorial review, fact-checking, ethical policies, etc.); c) and time and space limitations that tended to focus publication on the public interest. Social media is something completely different. It is a means of peer-to-peer communication and interaction which is entirely different in character and purpose from a magazine or newspaper. To treat it as the digital equivalent is not technological neutrality, it is technological nonsensicality.

It is important to remember that while the exception to consent for publicly available information exists in PIPEDA; the definition of its parameters is found in a regulation. Amendments to legislation require a long and public process; however, changes to regulations can happen much more quickly and with less room for public input. This recommendation by ETHI is therefore doubly disturbing – it could have a dramatic impact on the privacy rights of Canadians, and could do so more quickly and quietly than through the regular legislative process. The Privacy Commissioner was entirely correct in stating that there should be no change to these regulations without careful consideration and a balancing of interests, and perhaps no change at all.

Published in Privacy

The recent scandal regarding the harvesting and use of the personal information of millions of Facebook users in order to direct content towards them aimed at influence their voting behavior raises some interesting questions about the robustness of our data protection frameworks. In this case, a UK-based professor collected personal information via an app, ostensibly for non-commercial research purposes. In doing so he was bound by terms of service with Facebook. The data collection was in the form of an online quiz. Participants were paid to answer a series of questions, and in this sense they consented to and were compensated for the collection of this personal information. However, their consent was to the use of this information only for non-commercial academic research. In addition, the app was able to harvest personal information from the Facebook friends of the study participants – something which took place without the knowledge or consent of those individuals. The professor later sold his app and his data to Cambridge Analytica, which used it to target individuals with propaganda aimed at influencing their vote in the 2016 US Presidential Election.

A first issue raised by this case is a tip-of-the-iceberg issue. Social media platforms – not just Facebook – collect significant amounts of very rich data about users. They have a number of strategies for commercializing these treasure troves of data, including providing access to the platform to app developers or providing APIs on a commercial basis that give access to streams of user data. Users typically consent to some secondary uses of their personal information under the platform’s terms of service (TOS). Social media platform companies also have TOS that set the terms and conditions under which developers or API users can obtain access to the platform and/or its data. What the Cambridge Analytica case reveals is what may (or may not) happen when a developer breaches these TOS.

Because developer TOS are a contract between the platform and the developer, a major problem is the lack of transparency and the grey areas around enforcement. I have written about this elsewhere in the context of another ugly case involving social media platform data – the Geofeedia scandal (see my short blog post here, full article here). In that case, a company under contract with Twitter and other platforms misused the data it contracted for by transforming it into data analytics for police services that allowed police to target protesters against police killings of African American men. This was a breach of contractual terms between Twitter and the developer. It came to public awareness only because of the work of a third party (in that case, the ACLU of California). In the case of Cambridge Analytica, the story also only came to light because of a whistleblower (albeit one who had been involved with the company’s activities). In either instance it is important to ask whether, absent third party disclosure, the situation would ever have come to light. Given that social media companies provide, on a commercial basis, access to vast amounts of personal information, it is important to ask what, if any, proactive measures they take to ensure that developers comply with their TOS. Does enforcement only take place when there is a public relations disaster? If so, what other unauthorized exploitations of personal information are occurring without our knowledge or awareness? And should platform companies that are sources of huge amounts of personal information be held to a higher standard of responsibility when it comes to their commercial dealing with this personal information?

Different countries have different data protection laws, so in this instance I will focus on Canadian law, to the extent that it applies. Indeed, the federal Privacy Commissioner has announced that he is looking into Facebook’s conduct in this case. Under the Personal Information Protection and Electronic Documents Act (PIPEDA), a company is responsible for the personal information it collects. If it shares those data with another company, it is responsible for ensuring proper limitations and safeguards are in place so that any use or disclosure is consistent with the originating company’s privacy policy. This is known as the accountability principle. Clearly, in this case, if the data of Canadians was involved, Facebook would have some responsibility under PIPEDA. What is less clear is how far this responsibility extents. Clause 4.1.3 of Schedule I to PIPEDA reads: “An organization is responsible for personal information in its possession or custody, including information that has been transferred to a third party for processing. The organization shall use contractual or other means to provide a comparable level of protection while the information is being processed by a third party.” [My emphasis]. One question, therefore, is whether it is enough for Facebook to simply have in place a contract that requires its developers to respect privacy laws, or whether Facebook’s responsibility goes further. Note that in this case Facebook appears to have directed Cambridge Analytica to destroy all improperly collected data. And it appears to have cut Cambridge Analytica off from further access to its data. Do these steps satisfy Facebook’s obligations under PIPEDA? It is not at all clear that PIPEDA places any responsibilities on organizations to actively supervise or monitor companies with which it has shared data under contract. It is fair to ask, therefore, whether in cases where social media platforms share huge volumes of personal data with developers, is the data-sharing framework in PIPEDA sufficient to protect the privacy interests of the public.

Another interesting question arising from the scandal is whether what took place amounts to a data breach. Facebook has claimed that it was not a data breach – from their perspective, this is a case of a developer that broke its contract with Facebook. It is easy to see why Facebook would want to characterize the incident in this way. Data breaches can bring down a whole other level of enforcement, and can also give rise to liability in class action law suits for failure to properly protect the information. In Canada, new data breach notification provisions (which have still not come into effect under PIPEDA) would impose notification requirements on an organization that experienced a breach. It is interesting to note, though, that he data breach notification requirements are triggered where there is a “real risk of significant harm to an individual” [my emphasis]. Given what has taken place in the Cambridge Analytical scandal, it is worth asking whether the drafters of this provision should have included a real risk of significant harm to the broader public. In this case, the personal information was used to subvert democratic processes, something that is a public rather than an individual harm.

The point about public harm is an important one. In both the Geofeedia and the Cambridge Analytica scandals, the exploitation of personal information was on such a scale and for such purposes that although individual privacy may have been compromised, the greater harms were to the public good. Our data protection model is based upon consent, and places the individual and his or her choices at its core. Increasingly, however, protecting privacy serves goals that go well beyond the interests of any one individual. Not only is the consent model broken in an era of ubiquitous and continuous collection of data, it is inadequate to address the harms that come from improper exploitation of personal information in our big data environment.

Published in Privacy

In February 2018 the Standing Committee on Access to Information, Privacy and Ethics (ETHI) issued its report based on its hearings into the state of Canada’s Personal Information Protection and Electronic Documents Act. The Committee hearings were welcomed by many in Canada’s privacy community who felt that PIPEDA had become obsolete and unworkable as a means of protecting the personal information of Canadians in the hands of the private sector. The report, titled Towards Privacy by Design: Review of the Personal Information Protection and Electronic Documents Act seems to come to much the same conclusion. ETHI ultimately makes recommendations for a number of changes to PIPEDA, some of which could be quite significant.

This blog post is the first in a series that looks at the ETHI Report and its recommendations. It addresses the issue of consent.

The enactment of PIPEDA in 2001 introduced a consent-based model for the protection of personal information in the hands of the private sector in Canada. The model has at its core a series of fair information principles that are meant to guide businesses in shaping their collection, use and disclosure of personal information. Consent is a core principle; other principles support consent by ensuring that individuals have adequate and timely notice of the collection of personal information and are informed of the purposes of collection.

Unfortunately, the principle of consent has been drastically undermined by advances in technology and by a dramatic increase in the commercial value of personal information. In many cases, personal information is now actual currency and not just the by-product of transactions, changing the very fundamentals of the consent paradigm. In the digital environment, the collection of personal information is also carried out continually. Not only is personal information collected with every digital interaction, it is collected even while people are not specifically interacting with organizations. For example, mobile phones and their myriad apps collect and transmit personal information even while not in use. Increasingly networked and interconnected appliances, entertainment systems, digital assistants and even children’s toys collect and communicate steady streams of data to businesses and their affiliates.

These developments have made individual consent somewhat of a joke. There are simply too many collection points and too many privacy policies for consumers to read. Most of these policies are incomprehensible to ordinary individuals; many are entirely too vague when it comes to information use and sharing; and individuals can easily lose sight of consents given months or years previously to apps or devices that are largely forgotten but that nevertheless continuing to harvest personal information in the background. Managing consent in this environment is beyond the reach of most. To add insult to injury, the resignation felt by consumers without meaningful options for consent is often interpreted as a lack of interest in privacy. As new uses (and new markets) for personal information continue to evolve, it is clear that the old model of consent is no longer adequate to serve the important privacy interests of individuals.

The ETHI Report acknowledges the challenges faced by the consent model; it heard from many witnesses who identified problems with consent and many who proposed different models or solutions. Ultimately, however, ETHI concludes that “rather than overhauling the consent model, it would be best to make minor adjustments and let the stakeholders – the Office of the Privacy Commissioner (OPC), businesses, government, etc. – adapt their practices in order to maintain and enhance meaningful consent.”(at p. 20)

The fact that the list of stakeholders does not include the public – those whose personal information and privacy are at stake – is telling. It signals ambivalence about the importance of privacy within the PIPEDA framework. In spite of being an interest hailed by the Supreme Court of Canada as quasi-constitutional in nature, privacy is still not approached by Parliament as a human right. The prevailing legislative view seems to be that PIPEDA is meant to facilitate the exchange of personal information with the private sector; privacy is protected to the extent that it is necessary to support public confidence in such exchanges. The current notion of consent places a significant burden on individuals to manage their own privacy and, by extension, places any blame for oversharing on poor choices. It is a cynically neo-liberal model of regulation in which the individual ultimately must assume responsibility for their actions notwithstanding the fact that the deck has been so completely and utterly stacked against them.

The OPC recently issued a report on consent which also recommended the retention of consent as a core principle, but recognized the need to take concrete steps to maintain its integrity. The OPC recommendations included using technological tools, developing more accessible privacy policies, adjusting the level of consent required to the risk of harm, creating no-go zones for the use of personal information, and enhancing privacy protection for children. ETHI’s rather soft recommendations on consent may be premised on an understanding that much of this work will go ahead without legislative change.

Among the minor adjustments to consent recommended by ETHI is that PIPEDA be amended to make opt-in consent the default for any use of personal information for secondary purposes. This means that while there might be opt-out consent for the basic services for which a consumer is contracting (in other words, if you provide your name and address for the delivery of an item, it can be assumed you are consenting to the use of the information for that purpose), consumers must agree to the collection, use or disclosure of their personal information for secondary or collateral purposes. ETHI’s recommendation also indicates that opt-in consent might eventually become the norm in all circumstances. Such a change may have some benefits. Opt out consent is invidious. Think of social media platform default settings that enable a high level of personal information sharing, leaving consumers to find and adjust these settings if they want greater protection for their privacy. An opt-in consent requirement might be particularly helpful in addressing such problems. Nevertheless, it will not be much use in the context of long, complex (and largely unread) privacy policies. Many such policies ask consumers to consent to a broad range of uses and disclosures of personal information, including secondary purposes described in the broadest of terms. A shift to opt-in consent will not help if agreeing to a standard set of unread terms amounts to opting-in.

ETHI also considered whether and how individuals should be able to revoke their consent to the collection, use or disclosure of their personal information. The issues are complex. ETHI gave the example of social media, where information shared by an individual might be further disseminated by many others, making it challenging to give effect to a revocation of consent. ETHI recommends that the government “study the issue of revocation of consent in order to clarify the form of revocation required and its legal and practical implications”.

ETHI also recommended that the government consider specific rules around consent for minors, as well as the collection, use and disclosure of their personal information. Kids use a wide range of technologies, but may be particularly vulnerable because of a limited awareness of their rights and recourses, as well as of the long-term impacts of personal information improvidently shared in their youth. The issues are complex and worthy of further study. It is important to note, however, that requiring parental consent is not an adequate solution if the basic framework for consent is not addressed. Parents themselves may struggle to understand the technologies and their implications and may be already overwhelmed by multiple long and complex privacy policies. The second part of the ETHI recommendation which speaks to specific rules around the collection, use and disclosure of the personal information of minors may be more helpful in addressing some of the challenges in this area. Just as we have banned some forms of advertising directed at children, we might also choose to ban some kinds of collection or uses of children’s personal information.

In terms of enhancing consent, these recommendations are thin on detail and do not provide a great deal of direction. They seem to be informed by a belief that a variety of initiatives to enhance consent through improved privacy policies (including technologically enhanced policies) may suffice. They are also influenced by concerns expressed by business about the importance of maintaining the ‘flexibility’ of the current regime. While there is much that is interesting elsewhere within the ETHI report, the discussion of consent feels incomplete and disappointing. Minor adjustments will not make a major difference.

Up next: One of the features of PIPEDA that has proven particularly challenging when it comes to consent is the ever-growing list of exceptions to the consent requirement. In my next post I will consider ETHI’s recommendations that would add to that list, and that also address ‘alternatives’ to consent.

Published in Privacy

The Office of the Privacy Commissioner of Canada has released its Draft Position on Online Reputation. It’s an important issue and one that is of great concern to many Canadians. In the Report, the OPC makes recommendations for legislative change and proposes other measures (education, for example) to better protect online reputation. However, the report has also generated considerable controversy for the position it has taken on how the Personal Information Protection and Electronic Documents Act currently applies in this context. In this post I will focus on the Commissioner’s expressed view that PIPEDA applies to search engine activities in a way that would allow Canadians to request the de-indexing of personal information from search engines, with the potential to complain to the Commissioner if these demands are not met.

PIPEDA applies to the collection, use and disclosure of personal information in the course of commercial activity. The Commissioner reasons, in this report, that search engines are engaged in commercial activity, even if search functions are free to consumers. An example is the placement of ads in search results. According to the Commissioner, because search engines can provide search results that contain (or lead to) personal information, these search engines are collecting, using and disclosing personal information in the course of commercial activity.

With all due respect, this view seems inconsistent with current case law. In 2010, the Federal Court in State Farm Mutual Automobile Insurance Co. v. Canada (Privacy Commissioner) ruled that an insurance company that collected personal information on behalf of an individual it was representing in a law suit was not collecting that information in the course of commercial activity. This was notwithstanding the fact that the insurance company was a commercial business. The Court was of the view that, at essence, the information was being collected on behalf of a private person (the defendant) so that he could defend a legal action (a private and non-commercial matter to which PIPEDA did not apply). Quite tellingly, at para 106, the court stated: “if the primary activity or conduct at hand, in this case the collection of evidence on a plaintiff by an individual defendant in order to mount a defence to a civil tort action, is not a commercial activity contemplated by PIPEDA, then that activity or conduct remains exempt from PIPEDA even if third parties are retained by an individual to carry out that activity or conduct on his or her behalf.”

The same reasoning applies to search engines. Yes, Google makes a lot of money, some of which comes from its search engine functions. However, the search engines are there for anyone to use, and the relevant activities, for the purposes of the application of PIPEDA, are those of the users. If a private individual carries out a Google search for his or her own purposes, that activity does not amount to the collection of personal information in the course of commercial activity. If a company does so for its commercial purposes, then that company – and not Google – will have to answer under PIPEDA for the collection, use or disclosure of that personal information. The view that Google is on the hook for all searches is not tenable. It is also problematic for the reasons set out by my colleague Michael Geist in his recent post.

I also note with some concern the way in which the “journalistic purposes” exception is treated in the Commissioner’s report. This exception is one of several designed to balance privacy with freedom of expression interests. In this context, the argument is that a search engine facilitates access to information, and is a tool used by anyone carrying out online research. This is true, and for the reasons set out above, PIPEDA does not apply unless that research is carried out in the course of commercial activities to which the statute would apply. Nevertheless, in discussing the exception, the Commissioner states:

Some have argued that search engines are nevertheless exempt from PIPEDA because they serve a journalistic or literary function. However, search engines do not distinguish between journalistic/literary material. They return content in search results regardless of whether it is journalistic or literary in nature. We are therefore not convinced that search engines are acting for “journalistic” or “literary” purposes, or at least not exclusively for such purposes as required by paragraph 4(2)(c).

What troubles me here is the statement that “search engines do not distinguish between journalistic and literary material”. They don’t need to. The nature of what is sought is not the issue. The issue is the purpose. If an individual uses Google in the course of non-commercial activity, PIPEDA does not apply. If a journalist uses Google for journalistic purposes, PIPEDA does not apply. The nature of the content that is searched is immaterial. The quote goes on to talk about whether search engines act for journalistic or literary purposes – that too is not the point. Search engines are tools. They are used by actors. It is the purposes of those actors that are material, and it is to those actors that PIPEDA will apply – if they are collecting, using or disclosing personal information in the course of commercial activity.

The Report is open for comment until April 19, 2018.

Published in Privacy

Canada’s Federal Court of Appeal has handed down a decision that addresses important issues regarding control over commercially valuable data. The decision results from an appeal of an earlier ruling of the Competition Tribunal regarding the ability of the Toronto Real Estate Board (TREB) to limit the uses to which its compilation of current and historical property listings in the Greater Toronto Area (GTA) can be put.

Through its operations, the TREB compiles a vast database of real estate listings. Information is added to the database on an ongoing basis by real estate brokers who contribute data each time a property is listed with them. Real estate agents who are members of TREB in turn receive access to a subset of this data via an electronic feed. They are permitted to make this data available through their individual websites. However, the TREB does not permit all of its data to be shared through this feed; some data is available only through other means such as in-person consultation, or communications of snippets of data via email or fax.

The dispute arose after the Competition Commissioner applied to the Competition Tribunal for a ruling as to whether the limits imposed by the TREB on the data available through the electronic feed inhibited the ability of “virtual office websites” (VOWs) to compete with more conventional real estate brokerages. The tribunal ruled that they did, and the matter was appealed to the Federal Court of Appeal. Although the primary focus of the Court’s decision was on the competition issues, it also addressed questions of privacy and copyright law.

The Federal Court of Appeal found that the TREB’s practices of restricting available data – including information on the selling price of homes – had anticompetitive effects that limited the range of broker services that were available in the GTA, limited innovation, and had an adverse impact on entry into and expansion of relevant markets. This aspect of the decision highlights how controlling key data in a sector of the economy can amount to anti-competitive behavior. Data are often valuable commercial assets; too much exclusivity over data may, however, pose problems. Understanding the limits of control over data is therefore an important and challenging issue for businesses and regulators alike.

The TREB had argued that one of the reasons why it could not provide certain data through its digital feed was because these data were personal information and it had obligations under the Personal Information Protection and Electronic Documents Act to not disclose this information without appropriate consent. The TREB relied on a finding of the Office of the Privacy Commissioner of Canada that the selling price of a home (among those data held back by TREB) was personal information because it could lead to inferences about the individual who sold the house (e.g.: their negotiating skills, the pressure on them to sell, etc.). The Court noted that the TREB already shared the information it collected with its members. Information that was not made available through the digital feed was still available through more conventional methods. In fact, the Court noted that the information was very widely shared. It ruled that the consent provided by individuals to this sharing of information would apply to the sharing of the same information through a digital feed. It stated: “PIPEDA only requires new consent where information is used for a new purpose, not where it is distributed via new methods. The introduction of VOWs is not a new purpose – the purpose remains to provide residential real estate services [. . .].” (at para 165) The Court’s decision was influenced by the fact that the consent form was very broadly worded. Through it, TREB obtained consent to the use and dissemination of the data “during the term of the listing and thereafter.” This conclusion is interesting, as many have argued that the privacy impacts are different depending on how information is shared or disseminated. In other words, it could have a significant impact on privacy if information that is originally shared only on request, is later published on the Internet. Consent to disclosure of the information using one medium might not translate into consent to a much broader disclosure. However, the Court’s decision should be read in the context of both the very broad terms of the consent form and the very significant level of disclosure that was already taking place. The court’s statement that “PIPEDA only requires new consent where information is used for a new purpose, not where it is distributed via new methods” should not be taken to mean that new methods of distribution do not necessarily reflect new purposes that go beyond the original consent.

The Federal Court of Appeal also took note of the Supreme Court of Canada’s recent decision in Royal Bank of Canada v. Trang. In the course of deciding whether to find implied consent to a disclosure of personal information, the Supreme Court of Canada had ruled that while the balance owing on a mortgage was personal information, it was less sensitive than other financial information because the original amount of the mortgage, the rate of interest and the due date for the mortgage were all publicly available information from which an estimate of the amount owing could be derived. The Federal Court of Appeal found that the selling price of a home was similarly capable of being derived from other publicly available data sources and was thus not particularly sensitive personal information.

In addition to finding that there would be no breach of PIPEDA, the Federal Court of Appeal seemed to accept the Tribunal’s view that the TREB was using PIPEDA in an attempt to avoid wider sharing of its data, not because of concerns for privacy, but in order to maintain its control over the data. It found that TREBs conduct was “consistent with the conclusion that it considered the consents were sufficiently specific to be compliant with PIPEDA in the electronic distribution of the disputed data on a VOW, and that it drew no distinction between the means of distribution.” (at para 171)

Finally, the Competition Tribunal had ruled that the TREB did not have copyright in its compilation of data because the compilation lacked sufficient originality in the selection or arrangement of the underlying data. Copyright in a compilation depends upon this originality in selection or arrangement because facts themselves are in the public domain. The Federal Court of Appeal declined to decide the copyright issue since the finding that the VOW policy was anti-competitive meant that copyright could not be relied upon as a defence. Nevertheless, it addressed the copyright question in obiter (meaning that its comments are merely opinion and not binding precedent).

The Federal Court of Appeal noted that the issue of whether there is copyright in a compilation of facts is a “highly contextual and factual determination” (at para 186). The Court of Appeal took note of the Tribunal’s findings that “TREB’s specific compilation of data from real estate listings amounts to a mechanical exercise” (at para 194), and agreed that the threshold for originality was not met. The Federal Court of Appeal dismissed the relevance of TREB’s arguments about the ways in which its database was used, noting that “how a “work” is used casts little light on the question of originality.” (at para 195) The Court also found no relevance to the claims made in TREB’s contracts to copyright in its database. Claiming copyright is one thing, establishing it in law is quite another.

Published in Copyright Law

In R. v. Orlandis-Habsburgo the Ontario Court of Appeal revisited the Supreme Court of Canada decisions in R. v. Spencer, R. v. Gomboc, and R. v. Plant. The case involved the routine sharing of energy consumption data between an electricity provider and the police. Horizon Utilities Corp. (Horizon) had a practice of regularly reviewing its customers’ energy consumption records, including monthly consumption figures as well as patterns of consumption throughout the day. When Horizon encountered data suggestive of marijuana grow operations, they would send it to the police. This is what occurred in Orlandis-Habsburgo. The police responded by requesting and obtaining additional information from Horizon. They then conducted observations of the accused’s premises. The police used a combination of data provided by Horizon and their own observation data to obtain a search warrant which ultimately led to charges against the accused, who were convicted at trial.

The defendants appealed their convictions, arguing that their rights under s. 8 of the Canadian Charter of Rights and Freedoms had been infringed when the police obtained data from Horizon without a warrant. The trial judge had dismissed these arguments, finding that the data were not part of the “biographical core” of the defendants’ personal information, and that they therefore had no reasonable expectation of privacy in them. Further, he ruled that given the constellation of applicable laws and regulations, as well as Horizon’s terms of service, it was reasonable for Horizon to share the data with the police. The Court of Appeal disagreed, finding that the appellants’ Charter rights had been infringed. The decision is interesting because of its careful reading of the rather problematic decision of the Supreme Court of Canada in Gomboc. Nevertheless, although the decision creates important space for privacy rights in the face of ubiquitous data collection and close collaboration between utility companies and the police, the Court of Appeal’s approach is highly contextual and fact-dependent.

A crucial fact in this case is that the police and Horizon had an ongoing relationship when it came to the sharing of customer data. Horizon regularly provided data to the police, sometimes on its own initiative and sometimes at the request of the police. It provided data about suspect residences as well as data about other customers for comparison purposes. Writing for the unanimous court, Justice Doherty noted that until the proceedings in this case commenced, Horizon had never refused a request from the police for information. He found that this established that the police and Horizon were working in tandem; this was important, since it distinguished the situation from one where a company or whistleblower took specific data to the police with concerns that it revealed a crime had been committed.

The Court began its Charter analysis by considering whether the appellants had a reasonable expectation of privacy in the energy consumption data. The earlier Supreme Court of Canada decisions in Plant and Gomboc both dealt with data obtained by police from utility companies without a warrant. In Plant, the Court had found that the data revealed almost nothing about the lifestyle or activities of the accused, leading to the conclusion that there was no reasonable expectation of privacy. In Gomboc, the Court was divided and issued three separate opinions. This led to some dispute as to whether there was a reasonable expectation of privacy in the data. In Orlandis-Habsburgo, the Crown argued that seven out of nine judges in Gomboc had concluded that there was no reasonable expectation of privacy in electricity consumption data. By contrast, the appellants argued that five of the nine judges in Gomboc had found that there was a reasonable expectation of privacy in such data. The trial judge had sided with the Crown, but the Court of Appeal found otherwise. Justice Doherty noted that all of the judges in Gomboc considered the same factors in assessing the reasonable expectation of privacy: “the nature of the information obtained by the police, the place from which the information was obtained, and the relationship between the customer/accused and the service provider.” (at para 58) He found that seven of the judges in Gomboc had decided the reasonable expectation of privacy issue on the basis of the relationship between the accused and the utility company. At the same time, five of the justices had found that the data was of a kind that had the potential to reveal personal activities taking place in the home. He noted that: “In coming to that conclusion, the five judges looked beyond the data itself to the reasonable inferences available from the data and what those inferences could say about activities within the home.” (at para 66) He noted that this was the approach taken by the unanimous Supreme Court in R. v. Spencer, a decision handed down after the trial judge had reached his decision in Orlandis-Habsburgo. He also observed that the relationship between the customer and the service provider in Orlandis-Habsburgo was different in significant respects from that in Gomboc, allowing the two cases to be distinguished. In Gomboc, a provincial regulation provided that information from utility companies could be shared with the police unless customers explicitly requested to opt-out of such information sharing. No such regulation existed in this case.

Justice Doherty adopted the four criteria set out in Spencer for assessing the reasonable expectation of privacy. There are: “(1) the subject matter of the alleged search; (2) the claimant's interest in the subject matter; (3) the claimant's subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.” (Spencer, at para 18) On the issue of the subject matter of the search, the Court found that the energy consumption data included “both the raw data and the inferences that can be drawn from that data about the activity in the residence.” (at para 75) Because the data and inferences were about a person’s home, the Court found that this factor favoured a finding of a reasonable expectation of privacy. With respect to the interest of the appellants in the data, the Court found that they had no exclusive rights to these data – the energy company had a right to use the data for a variety of internal purposes. The Court described these data as being “subject to a complicated and interlocking myriad of contractual, legislative and regulatory provisions” (at para 80), which had the effect of significantly qualifying (but not negating) any expectation of privacy. Justice Doherty found that the appellants had a subjective expectation of privacy with respect to any activities carried out in their home, and he also found that this expectation of privacy was objectively reasonable. In this respect, he noted that although there were different documents in place that related to the extent to which Horizon could share data with the police, “one must bear in mind that none are the product of a negotiated bargain between Horizon and its customers.” (at para 84) The field of energy provision is highly regulated, and the court noted that “[t]he provisions in the documents to which the customers are a party, permitting Horizon to disclose data to the police, cannot be viewed as a ‘consent’ by the customer, amounting to a waiver of any s. 8 claim the customer might have in the information.” (at para 84) That being said, the Court also cautioned against taking any of the terms of the documents to mean that there was a reasonable expectation of privacy. Justice Doherty noted that “The ultimate question is not the scope of disclosure of personal information contemplated by the terms of the documents, but rather what the community should legitimately expect in terms of personal privacy in the circumstances.” (at para 85) He therefore described the terms of these documents as relevant, but not determinative.

The documents at issue included terms imposed on the utility by the Ontario Energy Board. Under these terms, Horizon is barred from using customer information for purposes other than those for which it was obtained without the customer’s consent. While there is an exception to the consent requirement where the information is “required to be disclosed. . . for law enforcement purposes”, Justice Doherty noted that in this case the police had, at most, requested disclosure – at no point was the information required to be disclosed. He found that the terms of the licence distinguished this case from Gomboc and supported a finding of a reasonable expectation of privacy in the data.

The Court also looked at the Distribution System Code (DSC) which permits disclosure to police of “possible unauthorized energy use”. However, Justice Doherty noted that this term was not defined, and no information was provided in the document as to when it was appropriate to contact police. He found this provision unhelpful in assessing the reasonable expectation of privacy. The Court found the Conditions of Service to be similarly unhelpful. By contrast, the privacy policy provided that the company would protect its customers’ personal information, and explicitly set out the circumstances in which it might disclose information to third parties. One of these was a provision for disclosure “to personas as permitted or required by Applicable Law”. Those applicable laws included the provincial Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) and the federal Personal Information Protection and Electronic Documents Act (PIPEDA) Justice Doherty looked to the Supreme Court of Canada’s interpretation of PIPEDA in Spencer. He found that the exception in PIPEDA that permitted disclosure of information to law enforcement could only occur with “lawful authority” and that “[t]he informal information-sharing arrangement between Horizon and the police described in the evidence is inconsistent with both the terms of Horizon’s licence and the disclosure provisions in PIPEDA.” (at para 104) He also found that it did not amount to “lawful authority” for a request for information.

The respondents argued that s. 32(g) of MFIPPA provided a basis for disclosure. This provision permits disclosures to law enforcement agencies without referencing any need for “lawful authority”. However, Justice Doherty noted that, like PIPEDA, MFIPPA has as its primary goal the protection of personal information. He stated: “That purpose cannot be entirely negated by an overly broad and literal reading of the provisions that create exceptions to the confidentiality requirement.” (at para 106) He noted that while s. 32(g) provides an entity with discretion to release information in appropriate circumstances, the exercise of this discretion requires “an independent and informed judgment” (at para 107) in relation to a specific request for information. The provision could not support the kind of informal, ongoing data-sharing relationship that existed between Horizon and the police. Similarly, the court found that the disclosure could not be justified under the exception in s. 7(3)(d)(i) of PIPEDA that allowed a company to disclose information where it had “reasonable grounds to believe that the information relates to . . . a contravention of the laws of Canada”. While Justice Doherty conceded that such disclosures might be possible, in the circumstances, Horizon “did not make any independent decision to disclose information based on its conclusion that reasonable grounds existed to believe that the appellants were engaged in criminal activity.” (at para 110) It simply passed along data that it thought might be of interest to the police.

Although the Court of Appeal concluded that there was a reasonable expectation of privacy in the energy consumption data, and that the search was unreasonable, it ultimately found that the admission of the evidence would not bring the administration of justice into disrepute. As a result, the convictions were upheld. The court cited, in support of its conclusion that the trial judge had reached his decision prior to the Supreme Court of Canada’s decision in Spencer, and that the error in the judge’s approach was only evident after reading Spencer.

 

Published in Privacy
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