Privacy law in effect, but not without wrinkles

Flood of phone calls to provincial privacy ombuds indicate there hasn't been enough training
By Uyen Vu
|Canadian HR Reporter|Last Updated: 02/12/2004

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hone lines at privacy ombuds offices across the country have been busy with businesses still confused about obligations under the federal privacy act, which expanded its coverage on Jan. 1.

At provincial offices responsible for safeguarding personal information, staff are fielding questions on the Personal Information Protection and Electronic Documents Act (PIPEDA), even though it’s federal legislation.

The number of phone calls would indicate that there hasn’t been enough training conducted by the federal government on the specifics of the legislation, said Sandy Hounsell, Newfoundland’s director of access to information.

Even after callers are directed to the tools and resources at the Web sites of both Industry Canada and the Office of the Privacy Commissioner of Canada, “they’re finding that there’s not sufficient detail for them,” said Hounsell.

“What they want is someone here to answer specific questions. And I’m hearing a fair amount of frustration from them about the lack of ability to do that.”

The privacy legislation requires organizations to obtain an individual’s consent before collecting, making use of, or disclosing personal information.

The law has been in effect for federally regulated businesses since 2001; its coverage extended to provincially regulated businesses in provinces that don’t have substantially similar laws on Jan. 1.

Quebec has had its own privacy law since 1994. Alberta and British Columbia are the only other provinces to pass their own privacy laws, currently under review by Industry Canada for their similarity to PIPEDA.

Hounsell said a number of callers have puzzled over what is considered a commercial activity, particularly those from universities, school boards and hospitals. “There’s some confusion as to whether these organizations fall under the legislation.”

According to the federal Privacy Commissioner, the core activity of these organizations is not considered commercial. Thus, when a student pays tuition to a university, that transaction isn’t considered commercial and would not be covered by the law. The university’s bookstore, however, would be covered, said Hounsell.

“There’s a number of these issues that have to be addressed, and my thought on this is these details have to be worked out in a court setting.”

In Alberta, Tim Chander, research and issues manager at the office of Information and Privacy Commissioner, said the Alberta law is indeed in effect. It was passed on Jan. 1, but Industry Canada hasn’t proclaimed it to be “substantially similar” to the federal law.

A determination is expected by mid-March at the latest.

Chander said Alberta’s privacy division has been holding training sessions across the province to help businesses become familiar with the law.

“Right now, a lot of organizations need guidance and a bit of hand-holding.”

One major difference between Alberta’s legislation and PIPEDA, said Chander, is the provincial commissioner’s quasi-judicial powers.

“Any order issued by this office is binding and can only be overturned by the Court of Queen’s Bench,” said Chander. In contrast, the federal privacy commissioner can only make recommendations.

A check at privacy commissioners’ offices around the country found relatively few people have been concerned by Quebec’s decision to challenge the federal law in court. The constitutional challenge was launched in December, just two weeks before PIPEDA came into effect. A spokesperson for Quebec’s justice department said the court challenge was in response to Ottawa’ declaration that Quebec’s privacy law was “substantially similar” to PIPEDA.

Richard Rosenberg, vice-president of the privacy watchdog Electronic Frontier of Canada, said the court case centres around the question of jurisdiction — not about the need to protect personal information.

“I doubt other provinces will jump on board as intervenors,” said Rosenberg, because with the exception of B.C. and Alberta, the provinces seem content to let the federal legislation be the law on the matter.

Hounsell, however, said the court challenge was “fully expected.” It was “always a matter of debate whether the federal government had the constitutionality to impose this kind of legislation on the provinces. It was always expected that someone — either a province or a corporation — would challenge the federal government’s ability to do this.”

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