Teresa Scassa - Blog

A recent story in iPolitics states that both the Liberals and the Conservatives support strengthening data protection laws in Canada, although it also suggests they may differ as to the best way to do so.

The Liberals have been talking about strengthening Canada’s data protection laws – both the Privacy Act (public sector) and the Personal Information Protection and Electronic Documents Act (PIPEDA) (private sector) since well before the last election, although their emphasis has been on PIPEDA. The mandate letters of both the Ministers of Justice and Industry contained directions to reform privacy laws. As I discuss in a recent post, these mandate letters speak of greater powers for the Privacy Commissioner, as well as some form of “appropriate compensation” for data breaches. There are also hints at a GDPR-style right of erasure, a right to withdraw consent to processing of data, and rights of data portability. With Canada facing a new adequacy assessment under the EU’s General Data Protection Regulation (GDPR) it is perhaps not surprising to see this inclusion of more EU-style rights.

Weirdly, though, the mandate letters of the Minister of Industry and the Minister of Heritage also contain direction to create the new role of “Data Commissioner” to serve an as-yet unclear mandate. The concept of a Data Commissioner comes almost entirely out of the blue. It seems to be first raised before the ETHI Committee on February 7, 2019 by Dr. Jeffrey Roy of Dalhousie University. He referenced in support of this idea a new Data Commissioner role being created in Australia as well as the existence of a UK Chief Data Officer. How it got from an ETHI Committee transcript to a mandate letter is still a mystery.

If this, in a nutshell, is the Liberal’s plan, it contains both the good, the worrisome, and the bizarre. Strengthening PIPEDA – both in terms of actual rights and enforcement of those rights is a good thing, although the emphasis in the mandate letters seems very oriented towards platforms and other issues that have been in the popular press. This is somewhat worrisome. What is required is a considered and substantive overhaul of the law, not a few colourful and strategically-placed band-aids.

There is no question that the role of the federal Privacy Commissioner is front and centre in this round of reform. There have been widespread calls to increase his authority to permit him to issue fines and to make binding orders. These measures might help address the fundamental weakness of Canada’s private sector data protection laws, but they will require some careful thinking about the drafting of the legislation to ensure that some of the important advisory and dispute resolution roles of the Commissioner’s office are not compromised. And, as we learned with reform of the Access to Information Act, there are order-making powers and then there are order-making powers. It will not be a solution to graft onto the legislation cautious and complicated order-making powers that increase bureaucracy without advancing data protection.

The bizarre comes in the form of the references to a new Data Commissioner. At a time when we clearly have not yet managed to properly empower the Privacy Commissioner, it is disturbing that we might be considering creating a new bureaucracy with apparently overlapping jurisdiction. The mandate letters suggest that the so-called data commissioner would oversee (among other things?) data and platform companies, and would have some sort of data protection role in this regard. His or her role might therefore overlap with both those of the Privacy Commissioner and the Competition Bureau. It is worth noting that the Competition Bureau has already dipped its toe into the waters of data use and abuse. The case for a new bureaucracy is not evident.

The Conservatives seem to be opposed to the creation of the new Data Commissioner, which is a good thing. However, Michelle Rempel Garner was reported by iPolitics as rejecting “setting up pedantic, out of date, ineffectual and bloated government regulatory bodies to enforce data privacy.” It is not clear whether this is simply a rejection of the new Data Commissioner’s office, or also a condemnation of the current regulatory approach to data protection (think baby and bath water). Instead, the Conservatives seem to be proposing creating a new data ownership right for Canadians, placing the economic value of Canadians’ data in their hands.

This is a bad idea for many reasons. In the first place, creating a market model for personal data will do little to protect Canadians. Instead, it will create a context in which there truly is no privacy because the commercial exchange of one’s data for products and services will include a transfer of any data rights. It will also accentuate existing gaps between the wealthy and those less well off. The rich can choose to pay extra for privacy; others will have no choice but to sell their data. Further, the EU, which has seriously studied data ownership rights (and not just for individuals) has walked away from them each time. Data ownership rights are just too complicated. There are too many different interests in data to assign ownership to just one party. If a company uses a proprietary algorithm to profile your preferences for films or books, is this your data which you own, or theirs because they have created it?

What is much more important is the recognition of different interests in data and the strengthening, through law, of the interests of individuals. This is what the GDPR has done. Rights of data portability and erasure, the right to withdraw consent to processing, and many other rights within the GDPR give individuals much stronger interests in their data, along with enforcement tools to protect those interests. Those strengthened interests are now supporting new business models that place consumers at the centre of data decision-making. Open banking (or consumer-directed banking), currently being studied by the Department of Finance in Canada, is an example of this, but there are others as well.

The fix, in the end, is relatively simple. PIPEDA needs to be amended to both strengthen and expand the existing interests of individuals in their personal data. It also needs to be amended to provide for appropriate enforcement, compensation, and fines. Without accountability, the rights will be effectively meaningless. It also needs to happen sooner rather than later.

 

(With thanks to my RA Émilie-Anne Fleury who was able to find the reference to the Data Commissioner in the ETHI Committee transcripts)

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