Tuesday, 22 May 2012

Striking a balance between Data Privacy Legislation and Charter Rights relating to Freedom of Expression


Within the Canadian constitutional landscape data privacy legislation is arguably within the ambit of both federal and provincial jurisdictions. Under section s 91(2) trade and commerce clause of the Constitution Act of 1867 Parliament of Canada enacted the Personal Information and Protection Act (PIPEDA) which applies to private sector organizations with commercial activities across Canada. At the same time provincial legislatures have also implemented privacy legislations pursuant to s 92(13) property and civil rights provisions of the Constitution Act. While the constitutionality of PIPEDA may be challenged[1] at a future date[2]  there is acknowledgment of shared jurisdiction between the federal government and the provinces. Provinces are exempt from compliance with Part 1 of PIPEDA if provincial privacy legislations are “substantially similar” to obligations relating to the collection, use and disclosure of personal or personally identifiable information.

There is yet another dimension of the tension between provincial and federal jurisdictions that surfaced with the recent Alberta Court of Appeal decision in United Food and Commercial Workers Local 401 v Alberta (Attorney General), 2012 ABCA 130.  In this appeal the court was asked to determine whether or not a union’s actions of videotaping individuals who may have crossed picket lines and then posting it to a website are protected by Charter of Rights as freedom of expression or does it infringe upon privacy rights pursuant to the provisions of the Alberta Personal Information Protection Act (PIPA). The court held that while it is of outmost importance to protect individual privacy rights particularly in light of technology advances the definition of personal or personally identifiable information in the Alberta PIPA Act was deemed to too broad and as such encroached upon the equally important right of freedom of expression. The court was particularly concerned about the absence of reasonable limits on what is deemed to constitute personal or personally identifiable information. The court reasoned “that People do not have a right to keep secret everything they do in public, such as crossing picket lines. There is no recognized right to withhold consent to the dissemination of information about unpleasant conduct. Holding people accountable for what they do or do not do in public is a component of the right to free expression.” The court concluded that “While the protection of personal information is important, it is no more important than collective bargaining and the rights of workers to organize.”

This decision may prompt similar challenges with respect to other provincial privacy legislations as well as the Federal PIPEDA legislation. Furthermore this decision brings into focus the role that Information Management plays in the formulation, implementation and measurement of the efficacy relating to the collection, use, disclosure and disposition of personal and personally identifiable information. There are increasing complexities associated with harmonizing competing values in an effort to balance competing interests domestically and also as part of international or cross border obligations relating to the transfer of personal information.  For example the European Union’s Directive on Data Protection prohibits member states from transferring personal data unless the requesting party provides adequate levels of protection in accordance with the provisions of the Directive.  Information Management professionals need to be increasingly more familiar with the complexities associated with multi -jurisdictional privacy regimes, legislation and regulations in order to implement effective business processes to support the collection, use, disclosure and disposition of personal data. Further compounding the challenges faced by IM professionals is the dynamic nature of a constantly evolving privacy landscape.

[1] http://www.teresascassa.ca/index.php?option=com_k2&view=item&id=96:fresh-questions-about-the-constitutionality-of-pipeda?&Itemid=80.  The recent Supreme Court decision in Re Securities Act held that a purported national securities regime was unconstitutional as it encroached upon provincial jurisdiction under section 92(13). The federal government was unable to establish that absence of a national securities regime would undermine consistent administration of securities regulations which the provinces acting alone could not achieve thereby falling within the trade and commerce clause of the Constitution Act. A similar legal argument may be advanced with respect to the constitutionality of PIPEDA.
[2] The Province of Quebec initially challenged but then later abandoned its action. However in light of the Supreme Court of Canada decision in Re Securities Act a possible avenue may opened up to future constitutional challenges to PIPEDA.
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Tuesday, 1 May 2012

Practical Tools for Measuring the Impact of Social Media Use

A recent AIIM study [1]  found that 51% of respondents consider social media to be an important factor that may contribute to improved customer service levels and productivity.   For example, 48% of organizations surveyed indicated that deployment of social media technologies resulted in improved internal processes such as better collaboration across different functional groups.
While the application of social media in corporate environments is in the early adoption phase there are best practices and tools to assist in the measurement of their value add.   Of particular note is the AIIM Report on “How to Conduct a Social Business Assessment” and the related AIIM social business roadmap[2].  Together these reports provide a framework for how to effectively implement and operationalize the assessment of the value of social media, what information to gather and how to analyze it.  The social media road map lays out a structured approach consisting of eight (8) steps “to help organizations effectively develop social business processes.” These steps include emergence, strategy, development, monitoring, participation, engagement, governance and optimization.   

In the emergent phase the use of social media tends to grow in the absence of formal policy.  Nonetheless, its adoption should be encouraged: “Management should provide visible support through public acknowledgement and recognition, for example by publishing good ideas on the intranet or even by providing material rewards.”  Experimentation in the form of prototyping is useful to “determine whether there is value to its use beyond the novelty or “coolness” factor.”

The strategy and development phases should encompass an assessment of the organizational objectives for the integration of social media technology within legacy IT applications such as identifying target audiences – internal and external, establishing intended outcomes such as direct and indirect benefits measured in terms of increased revenue, decreased operating costs, increased productivity and improved job satisfaction.  The impact of social media should also be taken into consideration.  Will its use foster improved knowledge sharing among employees?  Will it be embraced by management as use of social media tends to challenge traditional organizational hierarchies?  Equally important is an understanding of how the application of social media will impact brand equity with external stakeholders?  How its use will engender improved customer relationships and perceptions about the company?  An overarching consideration is the need for clearly articulated and communicated social media governance that should include social media policy, terms of use, security and privacy considerations.

The challenge in measuring social media effectiveness lies in the monitoring and optimization phases.  What are the relevant metrics?  Are there hard metrics to measure or they are mainly soft metrics such as sentiment analysis, brand perception, customer or constituency satisfaction?   Is there a hard ROI associated with social media?  For instance customer life time value (CLV) measure not only the financial benefits associated with a single purchase but the likelihood of additional services or referrals by a customer as a result of more persistent engagement through the application of social media technologies.  Another useful metric is new customer value (NCV) by tracking conversions from click through to sales.  Or you may measure customer service value (CSV) that tracks customer sentiments monitor responses and interactions.  Social media ROI is then a function of the return on investment which is the sum of life time customer value, new customer value and customer service value less total spend on social media divided by total spend on social media.

The AIIM report concludes that “Organizations need to approach social business processes and technologies formally and methodically in order to ensure their success, just as with any other management project or process.”

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