Teresa Scassa - Blog

Tuesday, 02 August 2022 09:28

Bill C-27 and a human rights-based approach to data protection

Written by  Teresa Scassa
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Privacy is a human right. It is recognized the United Nations Declaration of Human Rights and other international human rights instruments. In Canada, the Supreme Court of Canada has interpreted the. 8 Charter right to be secure against unreasonable search or seizure as a privacy right, and it has also found that data protection laws in Canada have ‘quasi-constitutional’ status because of the importance of the privacy rights on which they are premised. The nature of privacy as a human right should not be a controversial proposition, but it became so in Bill C-11, the 2020 Bill to reform the Personal Information Protection and Electronic Documents Act (PIPEDA). Bill C-11 did not address the human rights dimensions of data protection, and it was soundly criticized by the former Privacy Commissioner of Canada for failing to do so. Bill C-27, which contains the new PIPEDA reform bill, and which was introduced in June 2022, gives a nod to the human rights dimensions of data protection. This post will consider whether this is enough.

There are several reasons why the human rights dimensions of data protection law became such an issue in Canada. Data protection laws balance the privacy rights of individuals with the needs of organizations and governments to collect and use personal information for a range of purposes. If a balance is to be struck between two things, the weight given to considerations on either side of the scale must be appropriate. Recognizing the human rights dimensions of the protection of personal data gives added weight to the interests of individuals (and communities) by acknowledging the importance that control over personal data has to the exercise of a variety of human rights (including, but not limited to, dignity, autonomy and freedom from discrimination). It also acknowledges the substantial threats that the data economy can pose to human rights. Second, the EU’s General Data Protection Regulation puts the human rights dimensions of privacy and data protection front and centre. Once this has been done across the EU, the omission of a similar approach from draft legislation in Canada takes on greater significance. It starts to look like a deliberate statement. Third, Quebec takes an explicit human-rights based approach to privacy, making it – well, awkward – to have a less human rights-forward standard crafted for the rest of Canada. In Ontario, a government White Paper considering a private sector data protection law for Ontario explicitly endorsed a human rights-based approach.

The federal government’s hesitation to address the human rights dimensions of privacy is rooted in its anxiety over the constitutional footing for a federal private sector data protection law. PIPEDA has been constitutionally justified under the federal government’s general trade and commerce power. This means that it is enacted to regulate an aspect of trade and commerce at the national level. PIPEDA focuses on data collected, used, and disclosed by the private sector in the course of commercial activity. The government’s concern is that adopting a human rights-based approach would transform the statute from one that addresses the management of personal data in the commercial context to one that governs human rights as they relate to personal data. Constitutional anxiety is evident even in the new name of the future data protection law: The Consumer Privacy Protection Act [my emphasis].

The former Privacy Commissioner of Canada, Daniel Therrien, commissioned a legal opinion on the issues of constitutionality linked to adopting a human rights-based approach. This opinion found that the legislation could support such an approach within the general trade and commerce framework. The federal government clearly takes a different view, which may be rooted in an almost pathological division-of-powers anxiety. After all, this government also refused to defend the constitutional challenge to the Genetic Non-Discrimination Act, even though the constitutionality of that statute (which began its life as a private-member’s bill) was ultimately upheld by a majority of the Supreme Court of Canada.

One of the changes in Bill C-27 from Bill C-11 is the addition of a preamble. It is in this preamble that the government now makes reference to the human rights basis for privacy. The preamble also enumerates other considerations, making it clear that the interests (or rights) of individuals are just one factor in a rather complex balance. The other factors include the importance of trade and free flows of data, the need to support and foster the data-driven economy, the need for an agile regulatory framework, the need to not unduly burden small businesses, the need for harmonization, and the importance of facilitating data collection and use in the public interest.

The clauses in the preamble that address privacy and human rights include an acknowledgement that the protection of personal information is essential to the autonomy and dignity of individuals and to their full enjoyment of their fundamental rights and freedoms in Canada. This is probably the strongest statement and it is near the top of the list. There is also an acknowledgement of the importance of privacy and data protection principles found in international instruments. There are some references to human rights in relation to AI, but those relate to the Artificial Intelligence and Data Act that is part of this Bill. There is also a closing paragraph which refers to bolstering the digital and data-driven economy by establishing a regulatory framework “that supports and protects Canadian norms and values, including the right to privacy”. At best, however, this just emphasizes that the right to privacy is one factor in the balance – and not necessarily the predominant one. The government has been reasonably explicit in the preamble about the range of competing public policy considerations that feed into their data protection bill. The overall message is: “Yes, privacy is a human right, but we’re trying to do something here.”

Bill C-27 also includes the text of a proposed Artificial Intelligence and Data Act (AIDA). This statute is arguably the government’s attempt to address human rights in the AI and data context, in that it contains measures meant to address discriminatory bias in AI (which is fueled by data). It is meant to apply to ‘high impact’ systems (not defined in the Bill), although impact certainly seems to be understood in terms of harms to individuals. Next week my series of posts will begin to consider the AIDA in more detail. For present purposes, however, consider that the AIDA will only apply to systems defined as ‘high impact’; it addresses only individual and not group harms; it will apply only in the context of AI (whereas data are used in many more contexts); and many organisations and institutions are excluded from its scope. In any event, while the proper governance of AI is of great importance, so is the proper governance of personal data, which is the domain of data protection legislation. The AIDA is therefore not an answer to concerns over the need for a human rights-based approach to data protection.

I have argued for a human rights-based approach to privacy in data protection law. The volumes of data collected, the way these data are used and shared, and the potential impacts they can have on peoples’ lives all suggest that we can no longer mince words when it comes to understanding the significance of data protection. Technology now reduces just about anything to streams of data, and those data are used to profile, categorize, assess, and monitor individuals. They are used in tools of surveillance and control. Although we talk the talk of individual consent and control, such liberal fictions are no longer sufficient to provide the protection needed to ensure that individuals and the communities to which they belong are not exploited through the data harvested from them. This is why acknowledging the role that data protection law plays in protecting human rights, autonomy and dignity is so important. This is why the human rights dimension of privacy should not just be a ‘factor’ to take into account alongside stimulating innovation and lowering the regulatory burden on industry. It is the starting point and the baseline. Innovation is good, but it cannot be at the expense of human rights.

In Canada we have relied upon the normative idea in s. 5(3) of PIPEDA that any collection, use or disclosure of personal information must be “for purposes that a reasonable person would consider are appropriate in the circumstances”. This normative concept is also found in s. 12(1) of Bill C-27. Although past privacy commissioners have given substance to this provision, the concern remains that without an anchor in an explicitly human rights-based approach, the ‘reasonable person’ might, over time, be interpreted to be more excited about the potential of data to boost the economy than concerned about the adverse effects its use might have on certain individuals or groups. Given that Bill C-27 will shift interpretive authority over key concepts in the legislation from the Privacy Commissioner to the mysterious Data Tribunal, this normative wiggle-room is particularly concerning.

In spite of this, the addition of a preamble to Bill C-27, with its references to privacy and human rights is probably all that we are going to get from this government on this issue. There is not much interest in going back to the drawing board with this Bill, and the government is no doubt impatient to move the data protection law reform file forward.

In the meantime, it is worth noting that the provinces remain free to enact and/or amend their own private sector data protection laws, and to make strong statements about a human-rights-basis for data protection. The laws in Alberta and British Columbia will be reformed once a new federal bill is passed. And, with a newly re-elected government, Ontario might once again turn its attention to crafting its own law. There are other fronts on which this battle can be fought, and perhaps it is best to turn attention to these.

 

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