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.
