Although some say the Personal Information Protection and Electronic Documents Act is a way of playing catch up, Richard Simpson maintains it has pushed Canada to the position of leader in privacy legislation.
Simpson, director general of the electronic task force, helped write the Act and said recent legislation passed in the U.S. dealt only with children’s privacy, whereas Canada’s law has more far reaching effects.
“We’re leading. In fact, there is no other country that is ahead of us with the passing of this bill, and it’s coming into force in January,” he stated.
However, according to Lawrence Weinberg, a partner with Toronto-based Cassels, Brock and Blackwell, that there was an American law on the books first makes it seem like Canada missed the boat and now has to swim.
“I think in the area of e-commerce, the generally-held view is that Canada is playing catch-up with everything. Whether it’s in availability of products or services, availability of start up (funding)…or the adoption of laws recognizing e-commerce transactions, we’re behind all the way.”
Weinberg noted Quebec has had legislation like this for years. He said the Act essentially says a business can collect personal information, but cannot do anything with that information until they have the individual’s permission.
“It’s viewed as a hurdle in the growth of e-commerce that people don’t want to give up their personal information or they are fearful of what’s happening to their information. Most legitimate retailers are going an extra mile,” Weinberg said. “They are saying, ‘We will not share or sell your information.’ They’re not looking for consent to do it, they’re saying, ‘We won’t do it.'”
Under the Act, most organizations cannot collect personal information without the individual’s knowledge or consent. Simpson noted the Act is based on the Canadian Standards Association’s guidelines, which were developed by the industry and are in practice.
“So we had the advantage of taking what was out there and making it into the legal umbrella for personal information protection,” Simpson said.
He stated that because some people thought the bill didn’t go far enough while others felt it went too far, the wording must be about right.
The Act will be enforced by the privacy commissioner, who will audit businesses if complaints are filed against them.
“There are reporting requirements in the Act and there’s the opportunity for citizen complaint. If a citizen is denied access to his or her personal information, then the privacy commissioner is there to inquire into that,” Simpson explained.
Philippa Lawson, council with the Public Interest advocacy Centre in Ottawa, thought the enforcement capabilities of the privacy commissioner rested very heavily on the shoulders of the consumer.
“It’s all complaints-based,” she said. “The problem with privacy is that most of the privacy invasions out there are hidden.”
She added once a complaint has been made, the privacy commissioner can go and look at the business, but she or he has no binding powers.
“All he can do is make a recommendation and try to coerce the company into complying. In our experience there are companies that just don’t care. Then the only way to enforce it is to take it to federal court,” Lawson explained.
The commissioner or a consumer can take a company to court, according to Lawson, but she questioned how many cases are sufficiently critical to cause an individual to incur that type of expense.
She noted some privacy advocates had hoped the act would be more a human rights statute and “not so fuzzy in critical areas, like what forms consent.”
She added most people realized this was the best they were going to get and so supported it. “We were critical at the beginning. Then we realized if it were a really heavy enforcement regime, it wouldn’t have industry support and wouldn’t get passed at all.”.
Another point of interest for Lawson was that with the passing of this bill, most Canadians have stronger rights regarding personal information in the private sector than in the public sector.
Simpson noted one other point of conflict was the jurisdictions of the provincial governments. “We’ve addressed that controversy by saying, yes, the federal bill has this broad scope; if the provinces themselves legislate within their own jurisdiction, and we hope they do, then this provides for the federal government, in effect, retreating, but ensuring you have a single approach across the Canadian economy,” he said.
