995 Quebec, QC
Civil Section Documents - Personal Information and the Protection of Privacy
By: Denis C. Kratchanov, Counsel,
Information Law and Privacy Section
Department of Justice Canada
[See 1995 Proceedings at page 46]
The author wishes to thank Mr. Tom Onyshko, Mr. John Gregory, Mr. Colin H.H. McNairn, Mr. Jacques Dufresne, Mr. Gerald Taggart and Mr. Douglas Moen for their comments and suggestions. The author is particularly grateful to Mr. Tom Onyshko, who provided material from his forthcoming thesis on this subject.
The opinions expressed in this paper do not necessarily reflect the views of the Department of Justice Canada.
Table of Contents
I. HISTORICAL BACKGROUND
II. LEGAL CONTEXT
III. PRINCIPLES FOR DATA PROTECTION
ANNEX 1: OECD GUIDELINES
The purpose of this discussion paper is to identify principles that could serve as the basis for a Uniform Act on the Protection of Privacy and Personal Information.
Since the Uniform Law Conference of Canada adopted in 1994 a Uniform Privacy Act that creates a tort for invasion of privacy, this paper is concerned with the development of guidelines for the adoption of data protection legislation. There is a greater need for uniformity in legislation applying to the private sector, so the paper focuses on this area in particular.
The discussion paper sketches the historical background of the development of privacy law and discusses the legal context in which privacy now evolves. Data protection legislation is not a new phenomenon, so it is not hard to identify principles upon which to base the legislation. The real difficulty for the ULCC, if it decides to adopt this project, lies not in agreeing on whatthose principles should be, but in determining how they should be implemented.INTRODUCTION
Recent surveys have consistently shown that Canadians consider the issue of privacy a critical one. According to the 1992 privacy survey done by Ekos Research Associates, for instance, about half of the Canadian public is extremely concerned about their privacy, while the great majority is at least moderately concerned, putting privacy on the same level as unemployment and the environment and clearly surpassing concerns about national unity.(1) This high degree of concern about privacy may be explained, as some sociologists have suggested, by the theory that people instinctively oppose the idea of having their actions monitored and wish to maintain some areas of life free from official scrutiny. (2) People value a certain "looseness" in social relations so the weight of records about an individual's past actions does not become overwhelming, and they worry that large systems that collect detailed information change the balance between the public at large and central institutions.
Privacy commissioners, privacy advocates, and the public are demanding widespread data protection regulation for the Canadian public and private sectors. The Information Highway Advisory Council, established by the Minister of Industry in 1994 to assist the federal government in developing and implementing a strategy for Canada's Information Highway, has taken a similar position. Workplace monitoring, surveillance, drug testing and data matching are emerging as important privacy issues in the context of human rights and labour relations.
Technology threatening privacy
The Privacy Commissioner of Canada, Bruce Phillips, and his provincial counterparts see an urgent need to develop a proper regulatory framework for the information highway because of the immense amount of personal information that will soon be travelling on it and because of the public and private partnerships emerging to build it. Sectoral codes, self-regulation, patchwork legislation and industry watchdogs are no longer sufficient, according to Mr. Phillips,(3) and it is time for nothing less than broad privacy legislation for government and business.
The Commissioner calls for new broadly applicable national standards to be crafted withone of the major principles being that any informational exchange involving the federal government with the private sector carries the full protection of the Privacy Act. He suggests setting out in law fair information practice codes to govern the traffic of electronic information with the government having the role of overseeing and monitoring privacy protection.
Information Highway Advisory Council report
The Information Highway Advisory Council was established in the spring of 1994 to examine the technological and non-technological implications of building Canada's communications infrastructure. The Council will submit its final report to the Minister of Industry this summer, but it has already issued a number of recommendations for government consideration and action, including recommendations on privacy, access to information and equitable access, security, copyright and offensive content.
The final recommendations on privacy call on the government to develop and implement flexible framework legislation to protect personal information in both the public and private sectors. The Council recommends that this legislation be based on the Canadian Standards Association Model Privacy Code.
Domestic and international pressures
Another factor creating pressure for governments to regulate is the new standard set by Quebec in legislating its private sector. Quebec is the first jurisdiction in North America to attempt to regulate data protection in its private sector. Despite initial opposition to regulation, companies now seem to be complying with the data protection requirements of the Act without great difficulty. Some companies are even extending these requirements to their businesses located outside Quebec, using privacy protection as a marketing tool.
There is also international pressure to consider regulation. The European Union privacy directive has been approved in principle by the Council of Ministers and is now under study by the European Parliament's Legal Affairs and Citizens' Rights Committee. The directive will have implications for Canada because of the provision allowing member countries to block the flow of data across borders to countries that do not have adequate data protection rules. If Canada does not develop regulations, the directive could act as a non-tariff trade barrier.
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