Teresa Scassa - Blog

Teresa Scassa

Teresa Scassa

The Ontario Court of Appeal recently allowed a proposed class action proceeding for breach of privacy. This on its own is not unusual – such proceedings are increasingly common in Canada. (See earlier post on this subject here). What is particularly interesting about this decision is that the Court of Appeal ruled that Ontario’s Personal Health Information Protection Act (PHIPA) did not pose a barrier to tort proceedings. It had been argued that the provincial legislation created a “complete code” for dealing with breaches of personal information protection in the health care context in Ontario, and that tort law recourse was therefore not possible. This is an important decision for health care consumers, as class action litigation is emerging as an important means of redress and accountability for failures to adequately protect personal information. The decision should also send a wakeup call to hospitals and other health information custodians in the province.

In Hopkins v. Kay the representative plaintiff alleged that her medical records – along with those of 280 other patients at the Peterborough Regional Health Centre – had been improperly accessed by a hospital employee. The legal claim was based on the tort of intrusion upon seclusion, and the key issue was whether such recourse was precluded by the existence of PHIPA.

Writing for the unanimous Court, Justice Sharpe framed his analysis around two issues: first, whether there was a legislative intent to create a complete code when PHIPA was enacted; and second, whether the case law supported a conclusion that in the circumstances the jurisdiction of the Superior Court to consider a tort claim was ousted.

The relevance of the “complete code” issue is that if the legislature intended to create a complete code to deal with personal health information protection, then, by implication, it intended to preclude any separate tort recourse. In considering whether the intent was to create a complete code, Justice Sharpe drew on three criteria articulated by the Nova Scotia Court of Appeal in Pleau v. Canada: 1) is the dispute resolution process established by the legislation consistent with exclusive jurisdiction?; 2) what is the essential character of the dispute, and is it regulated by the legislation such that the intervention of the court would be inconsistent with the scheme; and 3) is the scheme capable of affording “effective redress”.

Justice Sharpe noted that PHIPA laid out an elaborate scheme governing the protection of personal health information. However, although he found that the statute “does contain a very exhaustive set of rules and standards for custodians of personal health information, details regarding the procedure or mechanism for the resolution of disputes are sparse.” (at para 37) He observed that oral hearings were not at all typical – in most cases, complaints were dealt with through written submissions. Further, apart from the right to make representations, there were no procedural guarantees in the statute. Justice Sharpe observed that the statute also allowed the Commissioner to refuse to consider a complaint where there was another more appropriate recourse. He found that this suggested that PHIPA was not meant to be an exclusive and comprehensive code.

The Court also found it significant that under PHIPA an award of damages could not be made by the Commissioner, and could only be made by way of a separate proceeding brought in the Supreme Court. Justice Sharpe found that this suggested that the Commission was not meant “to play a comprehensive or expansive role in dealing with individual complaints.” (at para 44) He concluded that “PHIPA provides an informal and highly discretionary review process that is not tailored to deal with individual claims, and it expressly contemplates the possibility of other proceedings.” (at para 45)

The second factor in the analysis required the court to consider the essential character of the claim, in order to determine whether a decision to assume jurisdiction would be consistent with the legislative scheme. The appellants argued that the claim was for nothing more than a breach of the PHIPA obligations, and that allowing the claim in tort to proceed would allow PHIPA to be circumvented. Justice Sharpe disagreed, noting that much more was required to make out the tort claim than to establish a breach of obligations under PHIPA. For example, the tort required a demonstration of intentional or reckless conduct, carried out without lawful justification, and in circumstances that a reasonable person would regard as highly offensive. On the whole, Justice Sharpe found that allowing the tort action to proceed in court would not undermine the scheme created under PHIPA.

The third consideration was whether the statute provided effective redress. The Court found that PHIPA gave the Commissioner a great deal of discretion when it came to the resolution of complaints, including the authority to decide not to proceed with a complaint. He also found that the complaints investigation process in PHIPA was generally meant to address systemic issues rather than to provide an effective recourse for individuals harmed by improper care of their personal information. Justice Sharpe noted that “Even if the Commissioner investigates a complaint, his primary objective in achieving an appropriate resolution will not be to provide an individual remedy to the complainant, but rather to address systemic issues.” (at para 59) Because of the broad discretion given to the Commissioner, any complainant whose complaint was not investigated would face “an expensive and uphill fight” to seek judicial review of the decision not to proceed. Justice Sharpe therefore concluded that the legislature had not intended to create a comprehensive code to deal with the consequences of misuse of personal health information.

The second issue considered by the Court was whether case law prevented the pursuit of the tort claim. Other courts had found that there was no right of action at common law where a statute provided a comprehensive scheme for redress. The leading case in this area is Seneca College v. Bhadauria, in which the Supreme Court of Canada ruled that the Ontario Human Rights Code precluded a separate common law tort of discrimination.

Justice Sharpe distinguished the Human Rights Code from PHIPA. He noted that the recourse under the Human Rights Code provided for awards of damages, whereas the Commissioner under PHIPA had no authority to award damages. Further, under PHIPA the Commissioner had a great deal of discretion to decide to proceed or not with a complaint, and chose to exercise that discretion so as to focus on systemic issues. By contrast, the Human Rights Code created a mechanism which focussed on the hearing of individual complaints. The two statutes were thus quite different. Justice Sharpe also distinguished two other cases involving labour relations legislation in which the courts refused to consider disputes that in their view should properly have been dealt with through arbitration or grievance mechanisms. Justice Sharpe noted that such proceedings provided an “accessible mechanism for comprehensive and efficient dispute resolution, and consequently form an important cornerstone of labour relations.” (at para 69) This was in contrast to PHIPA, where the Commissioner had given clear priority to the resolution of complaints raising systemic issues.

The Court concluded that there was nothing in PHIPA to support the view that the legislature intended to create an exhaustive code providing recourse for failures in the protection of personal health information. He found that permitting individuals to pursue claims at common law would not undermine PHIPA. He also found that the PHIPA scheme was such that in some cases individuals would not have effective redress under that statute. In the result, Ontarians now have the option of bringing tort claims for the mishandling of their personal health information. The case will also be of interest in other jurisdictions with personal information protection legislation.

 

 

Canada’s Access to Information Act is outdated and inadequate – and has been that way for a long time. Information Commissioners over the years have called for its amendment and reform, but generally with little success. The current Information Commissioner, Suzanne Legault has seized the opportunity of Canada’s very public embrace of Open Government to table in Parliament a comprehensive series of recommendations for the modernization of the legislation.

The lengthy and well-documented report makes a total of 85 recommendations. This will only seem like a lot to those unfamiliar with the decrepit statute. Taken as a whole, the recommendations would transform the legislation into a modern statute based on international best practices and adapted both to the information age and to the global movement for greater government transparency and accountability.

The recommendations are grouped according to 8 broad themes. The first relates to extending the coverage of the Act to certain institutions and entities that are not currently subject to the legislation. These include the Prime Minister’s Office, offices of Ministers, the bodies that support Parliament (including the Board of Internal Economy, the Library of Parliament, and the Senate Ethics Commissioner), and the bodies that support the operations of the courts (including the Registry of the Supreme Court, the Courts Administration Service and the Canadian Judicial Council). A second category of recommendations relates to the need to bolster the right of access itself. Noting that the use of some technologies, such as instant messaging, may lead to the disappearance of any records of how and why certain decisions are made, the Commissioner recommends instituting a legal duty to document. She also recommends adding a duty to report any unauthorized loss or destruction of information. Under the current legislation, there are nationality-based restrictions on who may request access to information in the hands of the Canadian government. This doesn’t mean that non-Canadians cannot get access – they currently simply have to do it through a Canadian-based agent. Commissioner Legault sensibly recommends that the restrictions be removed. She also recommends the removal of all fees related to access requests.

The format in which information is released has also been a sore point for many of those requesting information. In a digital age, receiving information in reusable digital formats means that it can be quickly searched, analyzed, processed and reused. This can be important, for example, if a large volume of data is sought in order to analyze and discuss it, and perhaps even to convert it into tables, graphs, maps or other visual aids in order to inform a broader public. The Commissioner recommends that institutions be required to provide information to those requesting it “in an open, reusable, and accessible format by default”. Derogation from this rule would only be in exceptional circumstances.

Persistent and significant delays in the release of requested information have also plagued the system at the federal level, with some considering these delays to be a form of deliberate obstruction. The Report includes 10 recommendations to address timeliness. The Commissioner has also set out 32 recommendations designed to maximize disclosure, largely by reworking the current spider’s web of exclusions and exemptions. The goal in some cases is to replace outright exclusions with more discretionary exemptions; in other cases, it is to replace exemptions scattered across other statutes with those in the statute and under the oversight of the Information Commissioner. In some cases, the Commissioner recommends reworking current exemptions so as to maximize disclosure.

Oversight has also been a recurring problem at the federal level. Currently, the Commissioner operates on an ombuds model – she can review complaints regarding refusals to grant access, in adequate responses, lack of timeliness, excessive fees, and so on. However, she can only make recommendations, and has no order-making powers. She recommends that Canada move to an order-making model, giving the Information Commissioner expanded powers to oversee compliance with the legal obligations set out in the legislation. She also recommends new audit powers for the Commissioner, as well as requirements that government institutions consult on proposed legislation that might affect access to information, and submit access to information impact assessments where changes to programs or activities might affect access to information. In addition, Commissioner Legault recommends that the Commissioner be given the authority to carry out education activities aimed at the public and to conduct or fund research.

Along with the order-making powers, the Commissioner is also seeking more significant consequences for failures to comply with the legislation. Penalties would attach to obstruction of access requests, the destruction, altering or falsification of records, failures to document decision-making processes, and failures to report on unauthorized loss or destruction of information.

In keeping with the government’s professed commitments to Open Government, the report includes a number of recommendations in support of a move towards proactive disclosure. The goal of proactive disclosure is to have government departments and institutions automatically release information that is clearly of public interest without waiting for an access to information request that they do so. Although the Action Plan on Open Government 2014-2016 sets goals for proactive disclosure, the Commissioner is recommending that the legislation be amended to include concrete obligations.

The Commissioner is, of course, not alone in calling for reform to the Access to Information Act. A private member’s bill introduced in 2014 by Liberal leader Justin Trudeau also proposes reforms to the legislation, although these are by no means as comprehensive as what is found in Commissioner Legault’s report.

In 2012 Canada joined the Open Government Partnership, and committed itself to an Action Plan on Open Government. This Action Plan contains commitments grouped under three headings: Open Information, Open Data and Open Dialogue. Yet its commitments to improving access to information are focussed on streamlining processes (for example, by making it possible to file and pay for access requests online, creating a virtual library, and making it easier to search for government information online.) The most recent version of the Action Plan similarly contains no commitments to reform the legislation. This unwillingness to tackle the major and substantive issues facing access to information in Canada is a serious impediment to realizing an open government agenda. A systemic reform of the Access to Information Act, such as that proposed by the Information Commissioner, is required.

A news story from January 2015 puts squarely into focus some of the challenges of privacy and open government.

The story centred on the Canadian legal information website CanLII, although the privacy issues it raises relate more directly to how government institutions protect personal information when seeking to comply with open courts and open government principles.

CanLII, a non-profit corporation that is managed by the Federation of Law Societies of Canada, is a tremendously important information resource in Canada. Since its inception, it has become instrumental in ensuring that Canadians have free online access to primary Canadian legal materials. It follows in the tradition of other Legal Information Institutes in the United States, Australia and Britain/Ireland. CanLII includes all Canadian and provincial statutes and regulations, case law from all federal and provincial courts, and case law from a growing number of administrative tribunals. Prior to CanLII’s appearance on the scene, these materials were found either on the shelves of law libraries, or were accessible through commercial databases that charged fees for access. In essence, they were not easily accessible to Canadians without significant effort or cost. In a legal system in which “ignorance of the law is no excuse”, and in which an ever-growing number of Canadians have no choice but to represent themselves in legal proceedings, this kind of public access seems essential. CanLII’s efforts to liberate these legal materials make an interesting story with plenty of open government lessons. (I have written about the evolution of CanLII here,).

The news story that broke in January related to a Romanian website that had scraped the content from CanLII and reposted it to another website hosted in Romania. In doing so, it allowed for the circumvention of technological measures put in place by CanLII that prevented Google from indexing terms found in court and tribunal decisions. These measures were put in place by CanLII largely to protect the privacy of individuals whose names and personal information may feature in court decisions. By contrast, the Romanian materials are fully searchable.

This situation raises several interesting issues of privacy and open government. At first glance, it may look like a failure of CanLII’s efforts to put into place effective technological measures to protect individual privacy. (CanLII has reportedly upgraded its technological protections, although the cases initially scraped from the site remain out of its control). But CanLII is really only the second line of defence. The first line of defence, is, of course, the courts and tribunals themselves that provide case law to CanLII as well as increasingly through their own websites.

The problem of “public personal information” is a thorny one, and it arises in this context as well as in many others. Public personal information is information that is legally public (government registry information, for example, or information in court decisions). While this information has long been public in nature, its widespread, immediate and limitless distribution was never contemplated in the pre-internet age in which decisions to make it public were made. Thus, there are important privacy issues surrounding how and under what conditions such information is made public, as well as how the public interest in openness should be balanced against individual rights to privacy in an internet and big data age.

In Canada, the open courts principle means that the proceedings of courts are open to public scrutiny – it’s a fundamental principle that justice must not only be done, it must be seen to be done. This means not only that, barring exceptional circumstances, court and tribunal hearings are public, as are the decisions reached in those cases. In fact, not only does this serve transparency and accountability values, the publication of court and tribunal decisions allows lawyers and members of the public to consult these decisions to better understand the law, and to learn how courts and tribunals interpret and apply legislation. In exceptional circumstances, courts may issue publication bans in relation to certain court hearings; courts may also order certain personal information (including, in some cases, names of individuals) redacted from court decisions. For example, in decisions involving young offenders, only initials are used. The names of victims of sexual assaults may also be redacted.

In the pre-internet dark ages, the redaction of names and other personal information from court decisions was less significant because these decisions did not circulate widely. Few members of the public, for exmpale, were curious enough to go down to a law library to trawl through case reporters in the hope of spotting the name of someone they knew. Internet access and online publication of decisions changes things significantly. Fully searchable databases of court and administrative tribunals can leave individuals substantially exposed with respect to a very broad range of personal information. Decisions in divorce cases may include a detailed account of assets and liabilities, and may also recount grim details of personal conduct. Decisions of workers’ compensation tribunals may contain significant amounts of personal health information; the same can be said of human rights tribunals, pension and disability tribunals, and so on. In many civil cases where plaintiffs allege damages for anxiety, stress, or depression caused by the harm they suffered, courts may engage in a detailed discussion of the evidence presented. In personal injury law suits, there may be considerable discussion of personal health information. This is just a sample of some of the personal information that may be found in court decisions. In digital form, this information is available to nosy neighbors, malefactors, and data miners alike.

Courts and tribunals publish their decisions in conformity with the open courts principle. Online publication, however, raises significant privacy concerns that must be balanced against the open courts principle. The Canadian Judicial Council has considered this issue, and has issued guidelines for courts as to how to prepare decisions for online publication. The Office of the Privacy Commissioner of Canada has also weighed in on the issue with respect to the practices of federal administrative tribunals. The problem is, of course, that these guidelines are not mandatory, and, as Christopher Berzins has noted, there no consistent approach across the broad range of courts and tribunals in Canada. Further, in some cases, there may be genuine debate about whether certain details are required in order to meet the open courts principle. For example, if we are to understand why a certain award of damages is made in a particular case, we need to understand the nature of the evidence presented, and how the judge assessed that evidence.

So much for the first line of defence. Ideally, courts and tribunals, prior to making decisions available for online publication, should address privacy issues. Many do, some do not. Not all do so to the same extent or in the same way. In some cases, the open courts principle will outweigh privacy considerations – although whether technical or other solutions should be instituted is an excellent question. The fact remains that much personal information ends up being published online through important resources such as CanLII. CanLII itself has introduced a second line of defence – technological measures to ensure that the personal information is not accessible through search engines. What the story about the Romanian website has taught us is that this line of defence is entirely porous. It has also taught us that as more and more public personal information is made available in formats that allow for easy dissemination, greater attention needs to be paid – by courts and by governments at all levels – to the challenges of public personal information.

Last week I wrote about a very early ‘finding’ under Canada’s Personal Information Protection and Electronic Documents Act which raises some issues about how the law might apply in the rapidly developing big data environment. This week I look at a more recent ‘finding’ – this time 5 years old – that should raise red flags regarding the extent to which Canada’s laws will protect individual privacy in the big data age.

In 2009, the Assistant Privacy Commissioner Elizabeth Denham (who is now the B.C. Privacy Commissioner) issued her findings as a result of an investigation into a complaint by the Canadian Internet Policy and Public Interest Clinic into the practices of a Canadian direct marketing company. The company combined information from different sources to create profiles of individuals linked to their home addresses. Customized mailing lists based on these profiles were then sold to clients looking for individuals falling within particular demographics for their products or services.

Consumer profiling is a big part of big data analytics, and today consumer profiles will draw upon vast stores of personal information collected from a broad range of online and offline sources. The data sources at issue in this case were much simpler, but the lessons that can be learned remain important.

The respondent organization used aggregate geodemographic data, which it obtained from Statistics Canada, and which was sorted according to census dissemination areas. This data was not specific to particular identifiable individuals – the aggregated data was not meant to reveal personal information, but it did give a sense of, for example, distribution of income by geographic area (in this case, by postal code). The company then took name and address information from telephone directories so as to match the demographic data with the name and location information derived from the directories. Based on the geo-demographic data, assumptions were made about income, marital status, likely home-ownership, and so on. The company also added its own assumptions about religion, ethnicity and gender based upon the telephone directory information – essentially drawing inferences based upon the subscribers’ names. These assumptions were made according to ‘proprietary models’. Other proprietary models were used to infer whether the individuals lived in single or multi-family dwellings. The result was a set of profiles of named individuals with inferences drawn about their income, ethnicity and gender. CIPPIC’s complaint was that the respondent company was collecting, using and disclosing the personal information of Canadians without their consent.

The findings of the Assistant Privacy Commissioner (APC) are troubling for a number of reasons. She began by characterizing the telephone directory information as “publicly available personal information”. Under PIPEDA, information that falls into this category, as defined by the regulations, can be collected, used and disclosed without consent, so long as the collection, use and disclosure are for the purposes for which it was made public. Telephone directories fall within the Regulations Specifying Publicly Available Information. However, the respondent organization did more than simply resell directory information.

Personal information is defined in PIPEDA as “information about an identifiable individual”. The APC characterized the aggregate geodemographic data as information about certain neighborhoods, and not information about identifiable individuals. She stated that “the fact that a person lives in a neighborhood with certain characteristics” was not personal information about that individual.

The final piece of information associated with the individuals in this case was the set of assumptions about, among other things, religion, ethnicity and gender. The APC characterized these as “assumptions”, rather than personal information – after all, the assumptions might not be correct.

Because the respondent’s clients provided the company with the demographic characteristics of the group it sought to reach, and because the respondent company merely furnished names and addresses in response to these requests, the APC concluded that the only personal information that was collected, used or disclosed was publicly available personal information for which consent was not required. (And, in case you are wondering, allowing people to contact individuals was one of the purposes for which telephone directory information is published – so the “use” by companies of sending out marketing information fell within the scope of the exception).

And thus, by considering each of the pieces of information used in the profile separately, the respondent’s creation of consumer profiles from diffuse information sources fell right through the cracks in Canada’s data protection legislation. This does not bode well for consumer privacy in an age of big data analytics.

The most troubling part of the approach taken by the APC is that which dismisses “assumptions” made about individuals as being merely assumptions and not personal information. Consumer profiling is about attributing characteristics to individuals based on an analysis of their personal information from a variety of sources. It is also about acting on those assumptions once the profile is created. The assumptions may be wrong, the data may be flawed, but the consumer will nonetheless have to bear the effects of that profile. These effects may be as minor as being sent advertising that may or may not match their activities or interests; but they could be as significant as decisions made about entitlements to certain products or services, about what price they should be offered for products or services, or about their desirability as a customer, tenant or employee. If the assumptions are not “actual” personal information, they certainly have the same effect, and should be treated as personal information. Indeed, the law accepts that personal information in the hands of an organization may be incorrect (hence the right to correct personal information), and it accepts that opinions about an individual constitute their personal information, even though the opinions may be unfair.

The treatment of the aggregate geodemographic information is also problematic. On its own, it is safe to say that aggregate geodemographic information is information about neighborhoods and not about individuals. But when someone looks up the names and addresses of the individuals living in an area and matches that information to the average age, income and other data associated with their postal codes, then they have converted that information into personal information. As with the ethnicity and gender assumptions, the age, income, and other assumptions may be close or they may be way off base. Either way, they become part of a profile of an individual that will be used to make decisions about that person. Leslie O’Keefe may not be Irish, he may not be a woman, and he may not make $100,000 a year – but if he is profiled in this way for marketing or other purposes, it is not clear why he should have no recourse under data protection laws.

Of course, the challenged faced by the APC in this case was how to manage the ‘balance’ set out in s. 3 of PIPEDA between the privacy interests of individuals and the commercial need to collect, use and disclose personal information. In this case, to find that consent – that cornerstone of data protection laws – was required for the use and disclosure of manufactured personal information, would be to hamstring an industry built on the sale of manufactured personal information. As the use – and the sophistication – of big data and big data analytics advances, organizations will continue to insist that they cannot function or compete without the use of massive stores of personal information. If this case is any indication, decision makers will be asked to continue to blur and shrink the edges of key concepts in the legislation, such as “consent” and “personal information”.

The PIPEDA complaint in this case dealt with relatively unsophisticated data used for relatively mundane purposes, and its importance may be too easily overlooked as a result. But how we define personal information and how we interpret data protection legislation will have enormous importance as to role of big data analytics in our lives continues to grow. Both this decision and the one discussed last week offer some insights into how Canada’s data protection laws might be interpreted or applied – and they raise red flags about the extent to which these laws are adequately suited to protecting privacy in the big data era.

A long past and largely forgotten ‘finding* from the Office of the Privacy Commissioner of Canada offers important insights into the challenges that big data and big data analytics will pose for the protection of Canadians’ privacy and consumer rights.

13 years ago, former Privacy Commissioner George Radwanski issued his findings on a complaint that had been brought against a bank. The complainant had alleged that the bank had wrongfully denied her access to her personal information. The requirement to provide access is found in the Personal Information Protection and Electronic Documents Act (PIPEDA). The right of access also comes with a right to demand the correction of any errors in the personal information in the hands of the organization. This right is fundamentally important, not just to privacy. Without access to the personal information being used to inform decision-making, consumers have very little recourse of any kind against adverse or flawed decision-making.

The complainant in this case had applied for and been issued a credit card by the bank. What she sought was access to the credit score that had been used to determine her entitlement to the card. The bank had relied upon two credit scores in reaching its decision. The first was the type produced by a credit reporting agency – in this case, Equifax. The second was an internal score generated by the bank using its own data and algorithm. The bank was prepared to release the former to the complainant, but refused to give her access to the latter. The essence of the complaint, therefore, was whether the bank had breached its obligations under PIPEDA to give her access to the personal information it held about her.

The Privacy Commissioner’s views on the interpretation and application of the statute in this case are worth revisiting 13 years later as big data analytics now fuel so much decision-making regarding consumers and their entitlement to or eligibility for a broad range of products and services. Credit reporting agencies are heavily regulated to ensure that decisions about credit-worthiness are made fairly and equitably, and to ensure that individuals have clear rights to access and to correct information in their files. For example, credit reporting legislation may limit the types of information and the data sources that may be used by credit reporting agencies in arriving at their credit scores. But big data analytics are now increasingly relied upon by all manner of organizations that are not regulated in the same way as credit-reporting agencies. These analytics are used to make decisions of similar importance to consumers – including decisions about credit-worthiness. There are few limits on the data that is used to fuel these analytics, nor is there much transparency in the process.

In this case, the bank justified its refusal to disclose its internal credit score on two main grounds. First, it argued that this information was not “personal information” within the meaning of PIPEDA because it was ‘created’ internally and not collected from the consumer or any other sources. The bank argued that this meant that it did not have to provide access, and that in any event, the right of access was linked to the right to request correction. The nature of the information – which was generated based upon a proprietary algorithm – was such that was not “facts” that could be open to correction.

The argument that generated information is not personal information is a dangerous one, as it could lead to a total failure of accountability under data protection laws. The Commissioner rejected this argument. In his view, it did not matter whether the information was generated or collected; nor did it matter whether it was subject to correction or not. The information was personal information because it related to the individual. He noted that “opinions” about an individual were still considered to be personal information, even though they are not subject to correction. This view of ‘opinions’ is consistent with subsequent findings and decisions under PIPEDA and comparable Canadian data protection laws. Thus, in the view of the Commissioner, the bank’s internally generated credit score was the complainant’s personal information and was subject to PIPEDA.

The bank’s second argument was more successful, and is problematic for consumers. The bank argued that releasing the credit score to the complainant would reveal confidential commercial information. Under s. 9(3)(b) of PIPEDA, an organization is not required to release personal information in such circumstances. The bank was not arguing so much that the complainant’s score itself was confidential commercial information; rather, what was confidential were the algorithms used to arrive at the score. The bank argued that these algorithms could be reverse-engineered from a relatively small sample of credit scores. Thus, a finding that such credit scores must be released to individuals would leave the bank open to the hypothetical situation where a rival might organize or pay 20 or so individuals to seek access to their internally generated credit scores in the hands of the bank, and that set of scores could then be used to arrive at the confidential algorithms. The Commissioner referred this issue to an expert on algorithms and concluded that “although an exact determination of a credit-scoring model was difficult and highly unlikely, access to customized credit scores would definitely make it easier to approximate a bank’s model.”

The Commissioner noted that under s. 9(3)(b) there has to be some level of certainty that the disclosure of personal information will reveal confidential commercial information before disclosure can be refused. In this case, the Commissioner indicated that he had “some difficulty believing that either competitors or rings of algorithmically expert fraud artists would go to the lengths involved.” He went on to say that “[t]he spectre of the banks falling under systematic assault from teams of loan-hungry mathematicians is simply not one I find particularly persuasive.” Notwithstanding this, he ruled in favour of the bank. He noted that other banks shared the same view as the respondent bank, and that competition in the banking industry was high. Since he had found it was technically possible to reverse-engineer the algorithm, he was of the view that he had to find that the release of the credit score would reveal confidential commercial information. He was satisfied with the evidence the bank supplied to demonstrate how closely guarded the credit-scoring algorithm was. He noted that in the UK and Australia, relatively new guidelines required organizations to provide only general information regarding why credit was denied.

The lack of transparency of algorithms used in the big data environment becomes increasingly problematic the more such algorithms are used. Big data analytics can be used to determine credit-worthiness – and such these determinations are made not just by banks but by all manner of companies that extend consumer credit through loans, don’t-pay-for-a-year deals, purchase-by-installment, store credit cards, and so on. They can also be used to determine who is entitled to special offers or promotions, for price discrimination (where some customers are offered better prices for the same products or services), and in a wide range of other contexts. Analytics may also be used by prospective employers, landlords or others whose decisions may have important impacts on people’s lives. Without algorithmic transparency, it might be impossible to know whether the assumptions, weightings or scoring factors are biased, influenced by sexism or racism (or other discriminatory considerations), or simply flawed.

There may be some comfort to be had that in this case the Commissioner was allowed to have access to the scoring model used. He stated that he found it innocuous – although it is not clear what kind of scrutiny he gave it. After all, his mandate extended only to decisions relating to the management of personal information, and did not extend to issues of discrimination. It is also worth noting that the Commissioner seems to suggest that each case must be decided on its own facts, and that what the complainant stood to gain and the respondent stood to lose were relevant considerations. In this case, the complainant had not been denied credit, so in the Commissioner’s view there was little benefit to her in the release of the information to be weighed against the potential harm to the bank. Nevertheless, the decision raises a red flag around transparency in the big data context.

In the next week or so I will be posting a ‘Back to the Future II’ account of another, not quite so old, PIPEDA finding that is also significant in the big data era. Disturbingly, this decision eats away at Commissioner Radwanski’s conclusion on the issue of “personal information” as it relates to generated or inferred information about individuals. Stay tuned!



* Because the Privacy Commissioner of Canada has no order-making powers, he can only issue “findings” in response to complaints filed with the office. The ‘findings’ are essentially opinions as to how the act applies in the circumstances of the complaint. If the complaint is considered well-founded, the Commissioner can also make recommendations as to how the organization should correct these practices. For binding orders or compensation the complainant must first go through the complaints process and then take the matter to the Federal Court. Few complainants do so. Thus, while findings are non-binding and set no precedent, they do provide some insight into how the Commissioner would interpret and apply the legislation.

 

In a paper that I have just published in the Fordham Urban Law Journal, I consider the evolution of intellectual property (IP) claims in relation to three specific categories of data that have been of interest to transit users: route maps, static transit data, and real-time GPS data. This data is generated by municipal transit authorities in the course of their operations. Increasingly, it has been sought as open data by developers keen to make use of this data in a very broad range of apps. It is also of interest to corporations that seek to add value to their products and services.

Route maps are a very basic form of transit data – they represent, in graphic form, the general location and ordering of transit stops within a given transit system. Static transit data is essentially schedule or timetable data. It is referred to as “static” because it is not subject to rapid change, although timetable data does change seasonally, as well as in response to growth or development in a given transit system. Real-time transit data is generated and communicated in real time. Typically it is gathered from GPS units that are installed on transit vehicles.

These three categories of data have all been the focus of IP disputes involving different actors and differing motivations. Because the categories of data also reflect an evolution of the types of available data, the technologies for accessing and using that data, and the growing complexity and value of the data, they offer an interesting window into the evolution of IP claims in this area. More specifically, they allow IP law to be considered not so much as the focus of inquiry (i.e. whether there is copyright in transit data), but rather in relation to its role within an emerging and evolving community of practice shaped by changing technology.

The claim to IP rights in something (a bus timetable, for example) is based upon an understanding that such rights may exist and are supported by statute and case law. However, in my research I was interested not just in law in this strict sense (i.e: can one have copyright in a bus timetable), but rather in law as it was experienced. What I found was that actual law was surprisingly irrelevant to many of the claims being asserted in the transit data context. Being in a position to make a claim to IP rights was in many ways more important than actually having a good claim.

Disputes over transit data have evolved along with the data. Early claims of copyright infringement were levelled by transit authorities against developers who adapted transit maps for viewing on the iPod. Similarly, copyright infringement claims were brought against app developers who used static transit data to develop timetable apps for emerging smartphone technology. Compounding the impact of these claims, notice and takedown provisions in U.S. copyright law gave putative rights holders a tool to remove apps from circulation based on copyright claims, regardless of their merits. Similar conflicts arose in relation to real-time GPS data. With real-time GPS data, another level was added – so-called patent trolls in Canada and the US pursued municipalities and app developers alike for the use of allegedly patented code useful in the communication of real-time GPS data.

In spite of a proliferation of IP claims, the municipal transit data context is one in which there is virtually no litigation. Instead, there are simply claims to rights invoked in cease and desist letters, as well as responses to those letters and public reaction to those claims. In the rare instances of formalized legal proceedings, disputes typically settle before going to court. As well, because disputes over municipal transit data tend to focus on claims to rights in data or data-based products, the claims are fundamentally both weak and contingent. They are weak because there can be no copyright in facts, and because the copyright in compilations of facts is notoriously “thin”. They are contingent because the only way to resolve the issue of whether any given compilation of facts is protected by copyright is to litigate the matter. In a context where the potential defendants cannot afford, or have no incentive, to litigate, it is the claim that matters far more than its merits.

Claims to intellectual property rights also underlie the contracts and licenses that are used to manage interactions in this area as well. They are used to arrive at ‘consensual’ solutions regarding the use of IP. In this sense, the licenses acknowledge and reinforce rights claims, creating, perhaps, a communal acquiescence to the claims. An open data licence involves a government granting a licence to use its data without need for permission or compensation; such a licence is premised upon the existence of IP rights. A party who agrees to such a licence before using the data tacitly accepts this IP claim.

In addition to the points of conflict discussed above, copyright law has been fundamental to the many open licences developed in conjunction with open transit data, and as such it has shaped other consensual relationships between actors in this field. As open data licences began to proliferate, issues around legal interoperability came to the fore, along with issues regarding the use of proprietary, as opposed to open, standards for transit data. These issues are not ones which attract litigation; for the most part they are matters of trial and error, negotiation and compromise. They reflect ongoing interaction and relationships between transit authorities, developers, private sector corporations and civil society groups. In my paper, I look at how community consensuses about law can emerge even in the absence of a specific legal text or case law. I examine how law is used by different actors to achieve certain ends, and what those ends are.

In the case of municipal transit data, the emerging and evolving open data movement began to have an impact on government practices with arguments around greater efficiency, lower cost, better citizen engagement, and so on. It drew upon the experience and rhetoric of the open source movement, as well as on the norms and practices of the software development community. These developments eventually led, in some key cases, to a shift in how (still very weak) IP rights were managed by municipalities and transit authorities. This in turn engaged new legal issues around open licenses. As open transit data evolved, so too did the number and nature of the actors with an interest in this area. IP rights become entangled not just in the transit data itself, but also in the technologies used to generate the data. IP became a matter of contention or consideration between a range of actors, both private and public sector.

My full paper, complete with references can be found here.

Wednesday, 18 February 2015 08:29

Intellectual Property Issues in Citizen Science

I am just back from the inaugural conference of the newly formed Citizen Science Association. If there were any doubt about the explosion of interest in citizen science, this conference, with its packed agenda and 600 registered attendees would lay it to rest.

Citizen science is a term whose definitional boundaries are constantly being expanded. It is sometimes also called public participatory scientific research, and broadly interpreted it could reach so far as to include open innovation. Like many other forms of collaborative and co-creative engagement, citizen science involves harnessing the labour or ingenuity of the crowd with a view to advancing scientific knowledge. Iconic citizen science projects range from eBird (involving the public in reporting and recording bird sightings), GalaxyZoo (engaging the public in classifying distant galaxies) and Nature’s Notebook (which asks the public to help track seasonal changes). Citizen science projects also stray into the biomedical realm and can cross commercial/non-commercial lines. PatientsLikeMe offers a forum for individuals to share information about their illnesses or medical conditions with researchers and with others with the same affliction. 23andMe provides individuals with information about their DNA (which participants contribute), and SNPedia provides individuals with resources to help them in interpreting their own DNA. But in addition to these more well-known projects, are thousands of others, on large and small scales across a range of scientific fields, and engaging different sectors of the public in a very broad range of activities and for a similarly broad spectrum of objectives.

My own interest in citizen science relates to the legal and ethical issues it raises. Not surprisingly, there are significant privacy issues that may be raised by various citizen science projects – and not just those in the biomedical sphere. There may also be interesting liability issues – what responsibility is engaged by researchers who invite volunteers to hike treacherous mountain trails to find and record data about elusive plant or animal species? Currently, my work is on intellectual property issues. Timed to coincide with the inaugural CitSci 2015 conference was the release of a paper I co-authored with Haewon Chung on intellectual property issues as between researchers and participants in citizen science. This paper was commissioned by the Woodrow Wilson Center for International Scholars Commons Lab, and we are continuing to expand our work in this area with the support of the Wilson Center.

Our paper invites participants and researchers to think about intellectual property in the context of citizen science, in large part because IP issues are so fundamental to the ability of researchers, participants, and downstream users to ultimately access, use and/or disseminate research results. Relationships between researchers and participants are not the only ones of importance in citizen science – we will expand beyond these in our future work. But these relationships are nonetheless fundamentally important in citizen science. To the extent that intellectual property law is about both the relationship of authors to their works and about the relationship of authors and others in relation to those works, these issues should be part of the design of citizen science projects.

Our paper, which is meant primarily for an audience of citizen science participants and researchers, develops a typology of citizen science projects from an IP point of view. We group citizen science projects into 4 broad categories defined by the type of contribution expected of participants. In some cases the nature and degree of participation makes it unlikely that participants will have any IP claims in their contributions to the project; in other cases, participants are regularly invited to contribute materials in which they may hold rights. We suggest that researchers think about these issues before launching their project with a view to avoiding complications later on, when they try to publish their research, decide to make their data fully open online, or make other dissemination plans. In some cases, the level of involvement of participants in problem-solving or data manipulation may also raise issues about their contribution to an invention that the researchers eventually seek to patent.

Identifying the IP issues is a first step – addressing them is also important. There are many different ways (from assignment of right to licensing) in which the IP rights of contributors can be addressed. Some solutions may be more appropriate than others, depending upon the ultimate goals of the project. In choosing a solution, researchers and project designers should think of the big picture: what do they need to do with their research output? Are there ethical obligations to open citizen science data, or to share back with the participant community? Do they have particular commitments to funders or to their institutions? Even if research data is made open, are there reasons to place restrictions on how the data is used by downstream users? These are important issues which have both a legal and an ethical dimension. They are part of our ongoing work in this area.

In the fall of 2014, Quebec’s Commission d’accès à l’information, which is responsible for overseeing Quebec’s private sector data protection legislation, ruled that the province’s law applied to Rogers Communications Inc., a federally regulated company. The company had been the subject of a complaint that it had violated Quebec’s data protection law when it required new cellular phone subscribers to provide two pieces of identification, and then recorded the identification numbers on the furnished ID documents. Administrative Judge Lina Desbiens ruled that the complaint was well-founded. In her view, while it was legitimate to ask to see identification for the purposes of establishing the identity of the client, it was not necessary to record the identification numbers. Further, she found that the document ID numbers were not necessary for the purposes of carrying out a credit check – other information would suffice for this purpose.

The issue of the application of the Quebec data protection statute is the more interesting part of this decision. Because Rogers is part of the federally-regulated telecommunications industry, the federal Personal Information Protection and Electronic Documents Act (PIPEDA) applies to its activities. Certainly there have been plenty of cases in which PIPEDA has been applied to Rogers or to its sister telecommunications companies.[1] From Rogers’ point of view, if the federal Act applied, then the provincial statute did not. Judge Desbiens disagreed. She noted that

s. 81 of the Act Respecting the Protection of Personal Information in the Private Sector gave the Commission jurisdiction over “any matter relating to the protection of personal information as well as into the practices of a person who carries on an enterprise and who collects, holds, uses or communicates such information to third persons.” She read this to mean that the Commission’s jurisdiction extended to the collection, use or disclosure of personal information by any business operating in Quebec. Since Rogers operated its business in Quebec, it was thus subject to the provincial law. Although the federal law might also apply to Rogers, Judge Desbiens found that it would only apply to the exclusion of the provincial law where the application of the provincial law would affect, in some significant way, the exercise of federal jurisdiction. In this case, she observed, Rogers was a telecommunications company, but the decision as to what pieces of identification it could require from new customers and what information it could record was not something that would affect in any way federal jurisdiction over telecommunications.

Judge Desbiens cited in support of her position several other decisions of the Commission d’accès à l’information in which the Quebec legislation was applied to companies in federally regulated industries. Notably, however, the facts addressed in these decisions predated the coming into effect of PIPEDA. Judge Desbiens also cited the more recent case of Nadler c. Rogers Communications Inc.. This case involved a civil suit for breach of privacy, and while the court considers the Quebec private sector data protection statute in its reasons, no argument appears to have been made regarding jurisdictional issues.

Judge Desbiens’ ultimate conclusion was that it was possible for a company to comply with both federal and provincial statutes by satisfying the stricter of the two sets of norms. In any event, she expressed the view her decision on the merits and the position of the federal Privacy Commissioner on similar issues did not diverge.[2]

The decision that both federal and provincial data protection statutes apply to federally regulated companies doing business in Quebec seems problematic. On the one hand, federally regulated companies are frequently subject to provincial laws in some of their day-to-day business activities. This is why, for example, some banking products or services are not available in all provinces. Arguably, therefore, it should not matter that a federally-regulated company be required to comply with provincial data protection norms. However, the situations are not equivalent. In the case of personal information, the federal government has provided a national scheme that specifically applies to federally regulated businesses. While Judge Desbiens is most likely correct that there would be little difference in the outcome of this case under PIPEDA, it should not necessarily be assumed that this would be the so on a different set of facts. And, while it is true that the data protection decision in this case does not interfere with federal jurisdiction over telecommunications, it does seem clearly to trench upon federal jurisdiction over data protection in the federally regulated private sector.

 



[1] For just a few examples, see: Kollar v. Rogers Communications Inc., 2011 FC 452, http://www.canlii.org/en/ca/fct/doc/2011/2011fc452/2011fc452.pdf; Buschau v. Rogers Communications Inc., 2011 FC 911, http://www.canlii.org/en/ca/fct/doc/2011/2011fc911/2011fc911.pdf; Johnson v. Bell Canada, [2009] 3 FCR 67, 2008 FC 1086; Henry v. Bell Mobility, 2014 FC 555.

[2] The Commission cited several documents published on the website of the Office of the Privacy Commissioner of Canada. These include: Collection of Drivers’ Licence Numbers Under Private Sector Privacy Legislation, https://www.priv.gc.ca/information/pub/guide_edl_e.asp; Best Practices for the Use of Social Insurance Numbers in the Private Sector, https://www.priv.gc.ca/resource/fs-fi/02_05_d_21_e.asp; and Photo Identification Guidance, https://www.priv.gc.ca/resource/fs-fi/02_05_d_34_tips_e.asp.

Class action law suits for breach of privacy are becoming increasingly common in Canada. For example, the B.C. Supreme Court, the Ontario Superior Court, and Newfoundland and Labrador Supreme Court have all recently certified class action law suits in relation to alleged privacy breaches.

The use of the class action law suit can be a useful solution to some of the problems that plague the victims of privacy breaches. These difficulties include:

1) The lack of any other meaningful and effective recourse for a large scale privacy breach. Complaints regarding a large-scale privacy breach by a private sector corporation can be made to the Privacy Commissioner of Canada under the Personal Information Protection and Electronic Documents Act (PIPEDA) (or to his provincial counterparts in B.C., Quebec or Alberta, depending upon the nature of the corporation and its activities). However, the federal privacy commissioner can only investigate and issue a report with non-binding recommendations. He has no order-making powers. Further, there is no power to award damages. An individual who feels they have been harmed by a privacy breach must, after receiving the Commissioner’s report, make an application to Federal Court for compensation. Damage awards in Federal Court under PIPEDA have been very low, ranging from about $0 to $5000 (with a couple of outlier exceptions). This amount of damages will not likely compensate for the time and effort required to bring the legal action, let alone the harm from the privacy breach. Perhaps more importantly, a few thousand dollars may not be a significant deterrent for companies whose practices have led to the privacy breach. The Privacy Commissioner’s Office has called for reform of PIPEDA to include order making powers, and to give the Commissioner the authority to impose significant fines on companies whose conduct leads to significant privacy harms. Yet legislative reform in this area does not seem to be on the current government’s agenda.

2) The problem of establishing damages in privacy cases. It can be very difficult to establish damages in cases where privacy rights have been breached. For example, although a company’s data breach might affect tens or even hundreds of thousands of individuals, it may be very difficult for any of those individuals to show that the data breach has caused them any actual harm. Even if one or more of these individuals suffers identity theft, it may be impossible to link this back to that particular data breach. While all of the affected individuals may suffer some level of anxiety over the security of their personal information, it is hard to put a dollar value on this kind of anxiety – and courts have tended to take a rather conservative view in evaluating such harm. It simply might not be worth it for any individual to bring legal action in such circumstances – even if they were to succeed, their damages would likely not even come close to making the litigation worth their while.

3) The inaccessibility of justice on an individual scale. Frankly, the majority of Canadians are not in a financial position to take anyone to court for breach of privacy. (Those in province of Quebec might be slightly better off in this regard, as privacy rights are much clearer and better established in private law in that province than they are elsewhere in Canada). It should be noted that those few individuals who have sought damages in Federal Court for PIPEDA breaches have been self-represented – legal representation would simply be too costly given the stakes. A suit for the tort of invasion of privacy or for breach of a statutory privacy tort would be considerably more complex than an application for damages under PIPEDA. Damage awards in privacy cases are so low that litigation is not a realistic solution for most.

In this context it is not surprising that the class action law suit for breach of privacy is catching on in Canada. Such law suits allow large numbers of affected individuals to seek collective recourse. As mentioned earlier, the British Columbia Supreme Court recently certified a class action law suit against Facebook for breach of privacy rights protected under British Columbia’s Privacy Act. The claim in Douez v. Facebook, Inc. related to Facebook’s Sponsored Stories “product”. Advertisers who paid to make use of this product could use the names and likenesses of Facebook users in “sponsored stories” about their products or services. These “sponsored stories” would then be sent to the contacts of the person featured in the story. The court found that between September 9, 2012 and March 10, 2013, 1.8 million B.C. residents were featured in Sponsored Stories. The plaintiffs argued that this practice violated their privacy. Although the issues have not yet been litigated on their merits, the certification of the class action law suit allows the privacy claims to proceed on behalf of the significant number of affected individuals.

In Evans v. Bank of Nova Scotia, Justice Smith of the Ontario Superior Court of Justice certified a class action law suit against the Bank of Nova Scotia. In that case, an employee of the bank had, over almost a five year period, accessed highly confidential personal banking information of 643 customers. In June of 2012, the Bank notified these customers that there may have been unauthorized access to their banking information; 138 of these individuals later informed the bank that they were victims of identity theft or fraud. The bank employee subsequently admitted that he had channelled the banking information through his girlfriend to individuals who sought to use the information for illegal purposes. The lawsuit claims damages for invasion of privacy and negligence, among other things, and argues that the bank should be held vicariously liable for the actions of its employee.

Most recently, in Hynes v. Western Regional Integrated Health Authority, the Newfoundland and Labrador Supreme Court certified a class action law suit against the Health Authority after it was discovered that an employee had improperly accessed 1,043 medical records without authorization. The information accessed included name and address information, as well as information about diagnostic and medical procedures at the hospital. This case is an example of where it may be difficult to assess or quantify the harm suffered by the particular individuals as a result of the breach, as it is not known how the information may have been used. The plaintiffs argued that both the statutory privacy tort in Newfoundland and the common law tort of intrusion upon seclusion were applicable, and that the Health Authority should be held vicariously liable for the acts of its employee. The also argued that the Health Authority had been negligent in its care of their personal information. The court found that the arguments raised met the necessary threshold at the class action certification stage – the merits remain to be determined once the case ultimately proceeds to trial.

What these three cases demonstrate is that class action law suits may give individuals a useful recourse in cases where data breaches have exposed their personal information and perhaps left them vulnerable to identify theft or other privacy harms. Such law suits may also act as a real incentive for companies to take privacy protection seriously. The cost of defending a class action law suit, combined with the possibility of a very substantial damages award (or settlement), and the potential reputational harm from high profile litigation, all provide financial incentives to properly safeguard personal information.

This may be welcome news for those who are concerned about what seems to be a proliferation of data breaches. It should not, however, let the federal government off the hook in terms of strengthening Canada’s private sector data protection legislation and giving the Privacy Commissioner more effective tools to act in the public interest to protect privacy by ensuring compliance with the legislation.

 

Just over a year ago, in Information and Privacy Commissioner of Alberta v. United Food and Commercial Workers, Local 401 the Supreme Court of Canada struck down Alberta’s Personal Information Protection Act (PIPA) on the basis that it violated the freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedom. The case arose after a union was found to have violated PIPA by collecting and using video and photo images of people crossing its picket lines in the course of a labour dispute without the consent of those individuals. The union was ultimately successful in its arguments that the limitations on the collection, use and disclosure of personal information without consent contained in PIPA violated their freedom of expression. (You can read more about this decision in my early blog post here).

As a remedy, the Supreme Court of Canada struck down the entire statute, but put in place a suspension of invalidity for a period of year. This amount of time was considered reasonable for the Alberta legislature to amend the legislation to bring it into conformity with the Charter. The year passed without legislative action, and at the last minute the government scrambled to obtain an extension. The Court granted a six month extension on October 30, 2014.

The Alberta government has now introduced a bill to amend PIPA to bring it into conformity with the Charter. Bill 3 is framed in fairly narrow terms. In essence, it creates a new exception to the general rule that there can be no collection, use or disclosure of personal information without consent. This exception is specifically for trade unions. The collection, use or disclosure without consent is permissible if it is “for the purpose of informing or persuading the public about a matter of significant public interest or importance relating to a labour relations dispute involving the trade union” (proposed new sections 14.1, 17.1, and 20.1). The information collected, used or disclosed must be “reasonably necessary” for that purpose, and, in the circumstances, it must be reasonable to collect, use or disclose that information without consent.

The new provisions attempt to strike a balance between the right to privacy and the freedom of expression of trade unions. While it will now be permissible to collect, use or disclose personal information without consent in the context of a labour dispute, there is no blank cheque. Rather than exempt trade unions from the application of PIPA altogether, the new provisions set out the circumstances in which unions may act, and these actions will be under the supervision of the Office of the Information and Privacy Commissioner (OIPC). A person whose information is collected, used or disclosed without their consent by a union may still complain to the OIPC; the OIPC will get to determine if the union’s purpose was to inform or persuade the public “about a matter of significant public interest or importance relating to a labour relations dispute involving the trade union” This wording is interesting – actions by a trade union taken in support of another trade union may not qualify, nor may actions carried out by a trade union to protest a government’s policies. Further, an adjudicator might decide that the information was collected, used or disclosed in relation to a matter that was not of significant public interest or importance. Whether this exception strikes the right balance is an open question which may arise in the course of some future dispute.

The issue of the balance between the freedom of expression and privacy is an extremely interesting one, and it arises in other contexts under private sector data protection legislation. These competing rights are purportedly balanced, for example, by provisions that exempt journalistic, artistic and literary endeavors from the application of the statute in certain circumstances. However, as the United Food case demonstrates, these exceptions do not necessarily capture all of the actors who may have information of public interest that they wish to communicate. A few years ago I wrote an article about the “journalistic purposes” exception that is found in Alberta’s PIPA, as well as in B.C.’s Personal Information Protection Act and the federal Personal Information Protection and Electronic Documents Act. I argue that this exception may not strike the right balance between the right to journalistic freedom of expression and privacy. In the first place, it is not clear who is meant to be entitled to the exception (what are journalistic, artistic or literary purposes, and who gets to assert them?) Secondly, the exceptions are structured so that once it is decided that the acts in question fall within the exception, there can be no oversight to determine whether the manner in which the personal information was collected, used or disclosed went beyond what was reasonable for the legitimate information of the public.

Although the United Food saga may be approaching its close, the issues around the balance between freedom of expression and privacy are far from being resolved. Expect to see these issues surfacing in cases arising under private sector data protection legislation (as was the case with United Food) as well as in other privacy contexts as well.

Note: I recently posted about a privacy law suit that raised freedom of expression issues. It can be found here.

 

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Electronic Commerce and Internet Law in Canada, 2nd Edition

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Canadian Trademark Law

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