DOCSLIB.ORG

Canadian Privacy Law: the Personal Information Protection and Electronic Documents Act (PIPEDA)

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Canadian Privacy Law: the Personal Information Protection and Electronic Documents Act (PIPEDA) International In-house Counsel Journal Vol. 2, No. 7, Spring 2009, 1135–1146 Canadian Privacy Law: The Personal Information Protection and Electronic Documents Act (PIPEDA) DOMINIC JAAR PATRICK E. ZELLER Legal Counsel Vice President & Deputy General Counsel Ledjit Consulting, Inc. Guidance Software, Inc. Canada United States This white paper provides a general overview of the Personal Information Protection and Electronic Documents Act (“PIPEDA”), and discusses both the privacy requirements imposed by that Act as well as the rules governing the use of electronic documents that it sets out. Overview Introduction to PIPEDA PIPEDA is the federal legislative response to growing concerns over the protection and use of personal information that is accumulated by both public and private organizations in the course of their day-to-day operations.1 The Act sets out rules governing how such information should be handled by the organizations that collect it, and under what circumstances it may be disclosed, either to third parties or to the individual who is the subject of the information. The Act contains two main parts. The first part sets out the rules governing the collection, retention and disclosure of personal information, as well as the remedies available in the event of a suspected breach. In essence, this part of the Act establishes a framework which attempts to balance the privacy rights of individuals with the needs of organizations to collect, use, and disclose personal information in the course of commercial activities. This part of the Act is discussed in sections I and II of this document. The second part of the Act describes the circumstances in which electronic alternatives may be used to fulfill legal obligations, which, under federal laws, require the use of paper documents to record or communicate information or transactions. For example, this part includes provisions providing for the filing or retention of documents in electronic format, as well as the use of electronic documents as evidence in court proceedings. This part of the Act is discussed in section III of this document. The enactment of PIPEDA was motivated not only by the government’s concern with privacy issues within its borders, but also by privacy developments taking place in other countries with whom Canadians do business. For example, certain EU directives dealing with the protection of personal information impose restrictions on the flow of data into jurisdictions which do not have similar privacy protections in place. PIPEDA was 1 Personal Information Protection and Electronic Documents Act (“PIPEDA”), 2000 S.C., ch. 5 (Can.). International In-house Counsel Journal ISSN 1754-0607 print/ISSN 1754-0607 online 1136 Dominic Jaar and Patrick E. Zeller therefore necessary to satisfy the “adequacy” requirement of EU privacy laws and avoid the creation of non-tariff barriers to trade with EU nations.2 Scope of PIPEDA PIPEDA came into force on January 1, 2001 and was implemented in three stages. At each stage, the list of organizations required to comply with the privacy requirements of the Act expanded, with the final stage taking effect on January 1, 2004. The Act now applies to all organizations engaged in the collection, use, or disclosure of personal information in the course of any commercial activity within Canada. To better understand what this means, it is useful to refer to the definitions provided in the Act. The term “commercial activity” means “any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, including the selling, bartering, or leasing of donor, membership or other fundraising lists.”3 Early indications suggest that this term may be interpreted broadly. In one notable case, the Privacy Commissioner determined that a security company, Centurion4, who installed surveillance cameras in a public intersection, monitored the cameras, and reported incidents to the local police free of charge in an effort to generate business was engaged in a “commercial activity” for the purposes of PIPEDA compliance. The term “organization” covers everything from traditional “brick-and-mortar”-type businesses to e-commerce businesses and includes corporations, associations, partnerships, trade unions and persons.5 The application of PIPEDA also extends to certain public and government entities, provided that they are not already subject to the Privacy Act. The term “personal information” means any information about an identifiable individual, including, but not limited to: name, age, gender, race, marital status, home address, credit rating, medical history, criminal history, purchasing history, and even an image of a person.6 Personal information also includes information that, combined with other information available to the organization, can identify an individual, such as a table of customer ID numbers. Personal information does not include the name, title, or business address or telephone number of an employee of an organization.7 The term “record” is defined broadly under PIPEDA, and includes “any correspondence, memorandum, machine-readable record, or any other documentary material, regardless of physical form or characteristics, and any copy thereof.”8 Businesses must “monitor all of their files, regardless of the form of storage which may contain personal information.” In the Centurion case discussed above, the Privacy Commissioner determined that, although Centurion was not recording the surveillance camera images on a tape but was merely monitoring the cameras 24-hours a day, the images the camera displayed were “records” under PIPEDA. Finally, the “use” of information is defined as the “treatment and handling of personal information within an organization.” By contrast, “disclosure” refers to the transfer of 2 Council Directive 95/46/EC, art. 25, 1995 O.J. (L 281) 31-50. 3 PIPEDA, 2000 S.C., ch. 5, s. 2(1) (Can.). 4 Federal Privacy Commissioner says "no" to Street Surveillance Cameras (June 20, 2001), accessed at <http://www.priv.gc.ca/media/an/nt_010620_e.cfm> on May 7, 2009. 5 Id. 6 Id. 7 Id. 8 Id. Data Protection 1137 data outside the organization. It should be noted that collection, use, and disclosure of personal information are considered to be distinct events for purposes of the Act. Territorial Application Although PIPEDA is federal legislation with the force of law in all jurisdictions across Canada, the Act also permits the Privacy Commissioner to exempt a province from the application of PIPEDA where that province has enacted “substantially similar” provincial privacy legislation. In such a case, it is the provincial legislation that regulates the privacy obligations of an organization, and PIPEDA has no application. Currently, three jurisdictions have received exemptions from PIPEDA: Quebec, British Columbia, and Alberta. For the most part, the legislation in these provinces mirrors PIPEDA. However, any company engaging in personal information collection, use, or disclosure in any of these three provinces is strongly advised to consult the provincial legislation to ensure compliance with the specific privacy laws applicable in that jurisdiction. This latter advice is particularly important for companies operating in Quebec, where privacy obligations are more onerous than under PIPEDA. The legislative regime in that province is composed of two separate statutes, one governing privacy issues (An Act respecting the protection of personal information in the private sector9) and a second dealing with the use of electronic documents (An Act to establish a legal framework for information technology10). Together, these two statutes establish a framework similar to the two parts of PIPEDA. It should be noted, however, that organizations operating under the Quebec legislation are subject to more stringent requirements affecting not only the manner in which information must be recorded and stored and the protections that must be put in place by the organization, but also the manner and content of communications with the individual concerned by the information, his or her rights of access, and the limitations placed on use and disclosure. Organizations operating in Quebec should therefore avoid relying on their knowledge of PIPEDA in determining their policies and practices relating to that jurisdiction. With respect to international entities, PIPEDA does not specify the minimum level of connection that a company must have with Canada in order to be subject to its provisions. No language in PIPEDA limits its application to businesses with a physical presence in Canada, nor are its provisions explicitly limited to personal information collection, use, or disclosure occurring solely within Canada. Furthermore, the Act was enacted by Parliament partially to protect personal information in cyberspace and e-commerce transactions. Therefore, it is likely that a foreign company operating only marginally in Canada – for example, by hosting a website available to Canadian citizens or entities – will be subject to PIPEDA. Individual Rights An individual who feels that his rights under PIPEDA have not been respected has several recourses which he or she may use to challenge a company’s compliance with the Act: 9 R.S.Q. ch. P-39.1 (2006). 10 R.S.Q. ch. C-1.1 (2001). 1138 Dominic Jaar and Patrick E. Zeller By complaining directly to the company; By filing a written complaint with the Privacy Commissioner of Canada; By applying for a hearing in Federal Court, but only after receiving the Privacy Commissioner’s
Load more

Recommended publications
  • Off the Grid: Pinpointing Location-Based Technologies and the Law
    Off the Grid: Pinpointing Location-based Technologies and the Law Written By: Geoffrey White, Barrister & Solicitor External Counsel The Public Interest Advocacy Centre 1204 - ONE Nicholas St. Ottawa, Ontario K1N 7B7 June 2015 Copyright 2015 PIAC Contents may not be commercially reproduced. Any other reproduction with acknowledgment is encouraged. The Public Interest Advocacy Centre (PIAC) Suite 1204 ONE Nicholas Street Ottawa, ON K1N 7B7 Tel: (613) 562-4002 Fax: (613) 562-0007 E-mail: [email protected] Website: www.piac.ca Canadian Cataloguing and Publication Data ISBN 978-1-927707-03-6 Off the Grid? Pinpointing Location-Based Technologies and the Law Off the Grid? Pinpointing Location-Based Technologies and the Law Page 2 of 109 Acknowledgement Financial support from Industry Canada to conduct the research on which this report is based is gratefully acknowledged. The views expressed in this report are not necessarily those of Industry Canada or of the Government of Canada. The author would also like to thank Kent Sebastian, PIAC Student-at-Law 2014-15, Sarah Mavula, PIAC Summer Student 2014, and Jonathan Bishop, PIAC’s Research & Parliamentary Affairs Analyst, for their research and contributions. Any mistakes are solely the author’s. Off the Grid? Pinpointing Location-Based Technologies and the Law Page 3 of 109 Executive Summary Knowledge of the whereabouts of a person, and of a person’s movement patterns, can be very valuable, from a marketing perspective. Indeed, the scale and scope of the business opportunities associated with so-called location-based behavioural marketing and location- based services (collectively, location-based technologies) have been well-documented in the business literature.
    [Show full text]
  • Bibliography
    Bibliography [1] M Aamir Ali, B Arief, M Emms, A van Moorsel, “Does the Online Card Payment Landscape Unwittingly Facilitate Fraud?” IEEE Security & Pri- vacy Magazine (2017) [2] M Abadi, RM Needham, “Prudent Engineering Practice for Cryptographic Protocols”, IEEE Transactions on Software Engineering v 22 no 1 (Jan 96) pp 6–15; also as DEC SRC Research Report no 125 (June 1 1994) [3] A Abbasi, HC Chen, “Visualizing Authorship for Identification”, in ISI 2006, LNCS 3975 pp 60–71 [4] H Abelson, RJ Anderson, SM Bellovin, J Benaloh, M Blaze, W Diffie, J Gilmore, PG Neumann, RL Rivest, JI Schiller, B Schneier, “The Risks of Key Recovery, Key Escrow, and Trusted Third-Party Encryption”, in World Wide Web Journal v 2 no 3 (Summer 1997) pp 241–257 [5] H Abelson, RJ Anderson, SM Bellovin, J Benaloh, M Blaze, W Diffie, J Gilmore, M Green, PG Neumann, RL Rivest, JI Schiller, B Schneier, M Specter, D Weizmann, “Keys Under Doormats: Mandating insecurity by requiring government access to all data and communications”, MIT CSAIL Tech Report 2015-026 (July 6, 2015); abridged version in Communications of the ACM v 58 no 10 (Oct 2015) [6] M Abrahms, “What Terrorists Really Want”,International Security v 32 no 4 (2008) pp 78–105 [7] M Abrahms, J Weiss, “Malicious Control System Cyber Security Attack Case Study – Maroochy Water Services, Australia”, ACSAC 2008 [8] A Abulafia, S Brown, S Abramovich-Bar, “A Fraudulent Case Involving Novel Ink Eradication Methods”, in Journal of Forensic Sciences v41(1996) pp 300-302 [9] DG Abraham, GM Dolan, GP Double, JV Stevens,
    [Show full text]
  • Report of Findings: Joint Investigation of Clearview AI, Inc
    REPORT OF FINDINGS Joint investigation of Clearview AI, Inc. by the Office of the Privacy Commissioner of Canada, the Commission d’accès à l’information du Québec, the Information and Privacy Commissioner for British Columbia, and the Information Privacy Commissioner of Alberta OPC PIPEDA-039525/CAI QC-1023158/OIPC BC P20- 81997/OIPC AB-015017 Joint Investigation by the Privacy Commissioner of Canada (OPC), the Commission d’accès à l’information du Québec (CAI), the Information and Privacy Commissioner for British Columbia (OIPC BC), and the Information and Privacy Commissioner of Alberta (OIPC AB) into Clearview AI, Inc.’s compliance with the Personal Information Protection and Electronic Documents Act (PIPEDA), the Act Respecting the Protection of Personal Information in the Private Sector, the Act to Establish a Legal Framework for Information Technology (LCCJTI), the Personal Information Protection Act (PIPA BC), and the Personal Information Protection Act (PIPA AB) Page 1 / 29 Contents Overview ..................................................................................................................................................... 3 Background ............................................................................................................................................... 5 Issues .......................................................................................................................................................... 6 Methodology .............................................................................................................................................
    [Show full text]
  • The Virtual Faraday Cage
    University of Calgary PRISM: University of Calgary's Digital Repository Graduate Studies The Vault: Electronic Theses and Dissertations 2013-08-09 The Virtual Faraday Cage King, James King, J. (2013). The Virtual Faraday Cage (Unpublished master's thesis). University of Calgary, Calgary, AB. doi:10.11575/PRISM/28416 http://hdl.handle.net/11023/867 master thesis University of Calgary graduate students retain copyright ownership and moral rights for their thesis. You may use this material in any way that is permitted by the Copyright Act or through licensing that has been assigned to the document. For uses that are not allowable under copyright legislation or licensing, you are required to seek permission. Downloaded from PRISM: https://prism.ucalgary.ca UNIVERSITY OF CALGARY The Virtual Faraday Cage by James King A THESIS SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF A MASTERS OF SCIENCE DEPARTMENT OF COMPUTER SCIENCE CALGARY, ALBERTA AUGUST, 2013 c James King 2013 Abstract This thesis' primary contribution is that of a new architecture for web application plat- forms and their extensions, entitled \The Virtual Faraday Cage". This new architecture addresses some of the privacy and security related problems associated with third-party extensions running within web application platforms. A proof-of-concept showing how the Virtual Faraday Cage could be implemented is described. This new architecture aims to help solve some of the key security and privacy con- cerns for end-users in web applications by creating a mechanism by which a third-party could create an extension that works with end-user data, but which could never leak such information back to the third-party.
    [Show full text]
  • Data Governance in the Digital Age a Cigi Essay Series
    DATA GOVERNANCE IN THE DIGITAL AGE A CIGI ESSAY SERIES I CONTENTS Introduction Data Governance in the Digital Age . 2 Rohinton P. Medhora Rationale of a Data Strategy Considerations for Canada’s National Data Strategy . 6 Teresa Scassa The Economics of Data: Implications for the Data-driven Economy . 14 Dan Ciuriak The Government’s Role in Constructing the Data-driven Economy . 20 Blayne Haggart Canadian Network Sovereignty: A Strategy for Twenty-First-Century National Infrastructure Building . 26 Andrew Clement The Role of a Data Strategy for Canadian Industries Treasure of the Commons: Global Leadership through Health Data . 34 Sachin Aggarwal Monetizing Smart Cities: Framing the Debate . 43 Kurtis McBride Big Data: The Canadian Opportunity . 47 Ian MacGregor Balancing Privacy and Commercial Values Preventing Big Data Discrimination in Canada: Addressing Design, Consent and Sovereignty Challenges . 54 Jonathan Obar and Brenda McPhail Data and the Future of Growth: The Need for Strategic Data Policy . 63 Dan Breznitz Domestic Policy for Data Governance Ungoverned Space: How Surveillance Capitalism and AI Undermine Democracy . 70 Taylor Owen Screen Time, the Brain, Privacy and Mental Health . 75 Norman Doidge Governance Vacuums and How Code Is Becoming Law . 81 Bianca Wylie Measuring the Economy in an Increasingly Digitalized World: Are Statistics Up to the Task? . 86 André Loranger, Amanda Sinclair and James Tebrake International Policy Considerations Data Libera? Canada’s Data Strategy and the Law of the Sea . 92 Ariel Katz Data Rules in Modern Trade Agreements: Toward Reconciling an Open Internet with Privacy and Security Safeguards . 99 Michael Geist Data Minefield? How AI Is Prodding Governments to Rethink Trade in Data .
    [Show full text]
  • Digital Rights Management and Consumer Privacy: an Assessment of DRM Applications Under Canadian Privacy
    ACKNOWLEDGEMENTS CIPPIC gratefully acknowledges the financial support of the Office of the Privacy Commissioner of Canada for this study. The study was directed by David Fewer, Staff Counsel for CIPPIC, and coordinated by Philippe Gauvin, LL.M. candidate at the University of Ottawa, Faculty of Law. Vanessa Lavoie provided administrative support. The following law students conducted investigations and/or conducted market research: Rachel Leck, Dan McConville, Seraphina Allen, Safwan Javed, Safina Lakhani, Kiernan Murphy, Denise Chapchal, Philippe Gauvin, Adam Barker. Special thanks to the following individuals who contributed to our DRM technological review: Mark McCans, Adam Barker, Byron Thom, Kiernan Murphy, Kris Constable and Angelique Mannella. Thanks to CIPPIC’s Director, Philippa Lawson, for her contributions to the PIPEDA assessment framework and her thorough review of the draft. An extra special thank you goes to our editors, Rachel Leck and Monique Moreau, for editing what ended up being a massive report. The report was drafted by David Fewer, Philippe Gauvin, and Alex Cameron. Canadian Internet Policy and Public Interest Clinic University of Ottawa, Faculty of Law 57 Louis Pasteur St. Ottawa, Ontario K1N 6N5 Canada Tel: 613-562-5800 x.2553 Fax: 613-562-5417 Email: [email protected] This work is licensed under the Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc-sa/2.5/ca/ or send a letter to Creative Commons, 543 Howard Street, 5th Floor, San Francisco, California, 94105, USA. ISBN 978-0-9781083-2-8 This publication is also available on our website at www.cippic.ca and wiki at www.cippic.ca/drm.
    [Show full text]
  • Left to Their Own Devices.Pdf(Link Is External)
    ABOUT THIS DOCUMENT This project was funded by the 2016-2017 Contributions Program of the Office of the Privacy Commissioner of Canada (OPC); the views expressed herein are those of the co-authors and do not necessarily reflect those of the OPC. As part of this program, the authors, in association with the Surveillance Studies Centre (SSC) at Queen’s University conducted an exploratory study of wearable devices in Canadian workplaces. Specifically, in an era where bodies are increasingly being represented by information, this research seeks to highlight the extent and proliferation of these devices, as well as, current information management practices and policy recommendations in the Canadian context. ABOUT THE SURVEILLANCE STUDIES CENTRE The Surveillance Studies Centre is a not-for-profit multi-disciplinary research centre at Queen's University. The SSC is a leading global hub for research on expanding surveillance practices and the increasing mobility of personal data and information. Through collaborative national and international projects, the SSC examines a full range of surveillance, security, and privacy issues. We provide up-to-date analysis, seek appropriate modes of ethical assessment and democratic involvement, raise awareness with the public, and seek to inform policy at every level. Working with academic, policy and NGO partners, the SSC makes a lasting difference in organizational practices, regulatory regimes and everyday lives. http://www.sscqueens.org ABOUT THE AUTHORS Steven Richardson: Is a PhD Candidate in the Department of Sociology at Queen’s University in Kingston, Ontario, Canada. His research examines the development of emerging technologies in socio-technical environments – particularly, the push and pull of users' own contributions to the design and development of these technologies.
    [Show full text]
  • Geo-Immersive Surveillance & Canadian Privacy
    Geo-Immersive Surveillance & Canadian Privacy Law By Stuart Andrew Hargreaves A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science. Faculty of Law University of Toronto © Copyright by Stuart Hargreaves (2013) Geo-Immersive Surveillance & Canadian Privacy Law Stuart Andrew Hargreaves Doctor of Juridical Science Faculty of Law, University of Toronto 2013 Abstract Geo-immersive technologies digitally map public space for the purposes of creating online maps that can be explored by anyone with an Internet connection. This thesis considers the implications of their growth and argues that if deployed on a wide enough scale they would pose a threat to the autonomy of Canadians. I therefore consider legal means of regulating their growth and operation, whilst still seeking to preserve them as an innovative tool. I first consider the possibility of bringing ‘invasion of privacy’ actions against geo-immersive providers, but my analysis suggests that the jurisprudence relies on a ‘reasonable expectation of privacy’ approach that makes it virtually impossible for claims to privacy ‘in public’ to succeed. I conclude that this can be traced to an underlying philosophy that ties privacy rights to an idea of autonomy based on shielding the individual from the collective. I argue instead considering autonomy as ‘relational’ can inform a dialectical approach to privacy that seeks to protect the ability of the individual to control their exposure in a way that can better account for privacy claims made in public. I suggest that while it is still challenging to craft a private law remedy based on such ideas, Canada’s data protection legislation may be a more suitable vehicle.
    [Show full text]
  • Consumers Anonymous?
    Consumers Anonymous? The Privacy Risks of De-Identified and Aggregated Consumer Data 6 October 2011 Public Interest Advocacy Centre http://www.piac.ca Acknowledgements PIAC gratefully acknowledges the financial support of the Office of the Privacy Commissioner of Canada Contributions Program for this study. We are also grateful for time and knowledge of various stakeholders consulted during the research of this project. In particular, PIAC would like to acknowledge the assistance and cooperation of the Canadian Bankers Association, the Canadian Life and Health Insurance Association and Insurance Bureau of Canada and their members for answering our questions and providing insights into their members’ practices. Janet Lo, John Lawford, and Roxane Gunning drafted the report. Janet Lo and John Lawford conducted the research for this study. Eden Maher, Diane Tsang, Amy Zhao, and Roxane Gunning provided research assistance. 2 Copyright 2011 PIAC Contents may not be commercially reproduced. Any other reproduction with acknowledgment is encouraged. The Public Interest Advocacy Centre (PIAC) Suite 1204 ONE Nicholas Street Ottawa, Ontario K1N 7B7 Canadian Cataloguing and Publication Data Consumers Anonymous? The Privacy Risks of De-Identified and Aggregated Consumer Data ISBN 1895060-99-0 3 TABLE OF CONTENTS 1. INTRODUCTION ................................................................................................................ 7 2. METHODOLOGY ...............................................................................................................
    [Show full text]
  • Transparent Lives: Surveillance in Canada Details Nine Key Trends in the Pro- Cessing of Personal Information, Trends That Are Evident Throughout the World
    transparent lives the new transparency project Transparent Lives Surveillance in Canada Editors: Colin J. Bennett, Kevin D. Haggerty, DaviD lyon, valerie SteeveS Copyright © 2014 Colin J. Bennett, Kevin D. Haggerty, David lyon, and valerie Steeves Published by AU Press, athabasca University 1200, 10011 – 109 Street, edmonton, AB t5J 3S8 ISBN 978-1-927356-77-7 (print) 978-1-927356-78-4 (PDF) 978-1-927356-79-1 (epub) doi:10.15215/aupress/9781927356777.01 Cover and interior design by Marvin Harder, marvinharder.com Printed and bound in Canada by Friesens library and archives canada cataloguing in publication transparent lives : surveillance in Canada / editors, Colin J. Bennett, Kevin D. Haggerty, David lyon, valerie Steeves. “the new transparency Project.” includes bibliographical references and index. issued in print and electronic formats. iSBn 978-1-927356-77-7 (pbk.).—iSBn 978-1-927356-78-4 (pdf).—iSBn 978-1-927356-79-1 (epub) 1. electronic surveillance—Canada. 2. Privacy, right of—Canada. 3. Social control— Canada. i. Bennett, Colin J. (Colin John), 1955-, editor of compilation II. Haggerty, Kevin D., editor of compilation III. lyon, David, 1948-, editor of compilation IV. Steeves, valerie M., 1959-, editor of compilation JC599.C3t73 2014 323.44’820971 C2013-908668-4 C2013-908669-2 this book has been published with the help of a grant from the Federation for the Humanities and Social Sciences, through the awards to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities research Council of Canada. We acknowledge the financial support of the government of Canada through the Canada Book Fund (CBF) for our publishing activities.
    [Show full text]
  • PRIVACY PROTECTION in the DIGITAL WORKPLACE in This Issue
    Volume 9 • Number 8 July 2012 PRIVACY PROTECTION IN THE DIGITAL WORKPLACE In This Issue: Privacy Protection in the Digital Workplace Pat Flaherty and Sarah Whitmore...........73 Pat Flaherty Sarah Whitmore Partner Associate Torys LLP Torys LLP We as a society don’t tolerate discrimination in the workplace, or harassment. Why would we tolerate invasion of privacy?1 Privacy has been described by the Supreme Court of Canada as “an essen- tial component of what it means to be ‘free.’”2 Protection of an individual’s right to privacy is “predicated on the assumption that all information about a person is in a fundamental way his own, for him to communicate or re- tain.”3 The importance of privacy has been acknowledged as a fundamental human right; but just as no other recognized human rights or Charter rights are absolute, the right to privacy must also yield to competing rights in cer- tain circumstances. In the workplace, the employer’s rights to monitor quality control and employee productivity as well as to ensure a safe and harassment-free workplace often warrant an incursion on employees’ rights to privacy. Governing the appropriate balance to be struck between employers’ rights and employees’ privacy interests is a patchwork of privacy legislation, in- dividual employment contracts, Charter rights, and the newly recognized tort of intrusion upon seclusion.4 CANADIAN PRIVACY LAW REVIEW • Volume 9 • Number 8 As technology has advanced and facilitated the spread of in- Canadian Privacy formation and the ease with which organizations can com- Law Review municate and store personal information, the need for The Canadian Privacy Law Review is published monthly by LexisNexis Canada Inc., employers to monitor their employees has become more 123 Commerce Valley Drive East, Suite 700, acute.
    [Show full text]
  • Reflections on Reform of the Federal Privacy Act
    Reflections on Reform of the Federal Privacy Act David H. Flaherty* June 2008 *Privacy and Information Policy consultant, Victoria, BC; Professor Emeritus, University of Western Ontario; 1st Information and Privacy Commissioner for British Columbia; author of Protecting Privacy in Surveillance Societies: The Federal Republic of Germany, Sweden, France, Canada, and the United States (1989). 1 “Today's commonplace information technologies — the Internet and new surveillance technologies such as digital video, linked networks, global positioning systems, black boxes in cars, genetic testing, biometric identifiers and radio frequency identification devices (RFIDs) — did not exist when the federal Privacy Act came into force in 1983. Characterizing the current Act as dated in coping with today's realities is an understatement — the Act is tantamount to a cart horse struggling to keep up with technologies approaching warp speed.”1 “The federal Privacy Act is woefully deficient as a vehicle for protecting the privacy rights of Canadians. Time and again, Privacy Commissioners and privacy advocates have called for a thorough review and modernization of the legislation. The Privacy Act contains no effective mechanism to deal strategically with complaints, requiring that every complaint be examined – a potentially overwhelming, but unnecessary, burden. The Act was drafted well before the extensive penetration of computing power and surveillance technology into our lives. It was drafted long before the era of globalization and the extensive sharing of personal information across borders with corporations, with governments, and indirectly through corporations to foreign governments. It was drafted long before the era when the word terrorism began to fall from everyone’s lips amid calls for ever greater amounts of personal information in the quest to enhance personal and national security.”2 “The Privacy Act is at the hub of the informational relationship between state agencies and individuals.
    [Show full text]