Privacy in Canada: A Roundup

There have been several recent noteworthy Canadian privacy developments, including:

Reasonable expectation of privacy

The Supreme Court of Canada’s Jarvis decision set out a test to determine when someone has a reasonable expectation of privacy. Even though this was a criminal case about voyeurism in a school, the test will no doubt be used in any context. The key point is that the test is not binary. One can have no reasonable expectation of privacy in one context (such as school security cameras) - but at the same time and location have a reasonable expectation of privacy in another context (such as being covertly videoed by a teacher).

Digital Charter

The Federal Government recently revealed a Digital Charter that included an intention to revamp PIPEDA, the privacy legislation that governs the private sector in many provinces. The charter is nothing more than an expression of intent, and an election platform, so it will be a long time before we see any draft legislation, even if the current government is re-elected. At some point we may end up with something that is more GDPR-ish than we have now.

Facebook decision

The Privacy Commissioner is taking the unusual step of launching a legal action against Facebook for privacy violations. The Commissioner feels that Facebook is disregarding privacy laws and the Commissioner’s decisions and direction so much that the normal decision process is not working. Facebook is also facing the wrath of US regulators for not following earlier privacy conditions it had agreed to. Facebook has recently talked about doing better with privacy, but one has to wonder if they really understand or embrace it.

Privacy Commissioner consultation re processors

The Privacy Commissioner recently rattled the privacy bar and businesses by launching a consultation on consent needed for a business to use a third party processor to process the business’s data. The Commissioner thinks consent is needed, even though neither PIPEDA nor a long-standing bulletin from the Privacy Commissioner’s office supports that notion. The consultation is now in its third iteration, with more questions added as a result of the Digital Charter. Many believe that the proposed interpretation is not supported by the law, is not practical, and will not help with privacy. They are accepting comments until August 6.

David Canton