It's not the end of privacy yet in Canada, but the threat remains
Robert Diab, Professor, Faculty of Law, Thompson Rivers University
A constitutional right to privacy
Canadians receive protection from police and other government institutions under the Charter of Rights and Freedoms. And while the word “privacy” appears nowhere in the document, Section 8 still gives Canadians the right to be “secure against unreasonable search or seizure.”
Our highest court drew upon the Fourth Amendment case law in the United States to hold that police engage Section 8 when they search or seize something over which we have “a reasonable expectation of privacy.”
Courts have held that we have a privacy interest in anything that reveals intimate information about us, our lifestyle choices or our “biographical core.” This includes obvious things, like the content of our pockets, homes and digital devices – but it also includes less obvious things like our DNA, breath samples or subscriber information attached to our internet service provider accounts.
Where we do have a reasonable expectation of privacy in a place or thing, police generally need a warrant to search or seize it. In many cases, however, they don’t. They need only be authorized by law to carry out the search. The law, in turn, must be reasonable in striking an appropriate balance between law enforcement interests and personal privacy.
When police obtain evidence without a warrant, or act without authority, a court can exclude the evidence at that person’s criminal trial — though, in some cases, it may decline to do so.
Privacy in the private sphere
The Charter sets limits on what government officials and agencies can do to infringe on our privacy, but more often our privacy is threatened by private entities that gather data or information from us. What are the guardrails in place here and what are the consequences for violating them?
We have federal and provincial statutes to deal with privacy incursions by commercial entities. In some cases, we can sue civilians or businesses in court for breach of privacy.
Read more: Explainer: what is surveillance capitalism and how does it shape our economy?
The most important of these tools is the federal Personal Information Protection and Electronic Documents Act (PIPEDA), which contains rules about collecting, using and disclosing personal information by private sector entities in Canada.
PIPEDA applies to a wide range of commercial activity across all provinces, from large retailers to online platforms. British Columbia, Alberta and Québec have their own privacy laws that cover matters to which PIPEDA does not apply.
The main obligation in PIPEDA is that a company may not collect, use or disclose information about us unless they have our informed consent and use, or share it, for an identified purpose. The act empowers individuals to access information about themselves and to correct inaccuracies.
The Privacy Commissioner of Canada enforces the act, but has often complained of the weak tools at their disposal for doing so.
A better future for personal privacy?
Currently, parliament is debating the passage of Bill C-27, which would largely replace PIPEDA with the Consumer Privacy Protection Act (CPPA).
The new act will impose more stringent penalties for breaches and give authorities more enforcement tools. But it may also expand the scope of what private entities can do with our data by permitting with benefits “proportionate to” the impact on, or loss of, privacy.
At least one commentator believes the Privacy Commissioner of Canada will continue to permit data collection by social media companies and search engines for advertising purposes under the CPPA. But the act will require companies to be more explicit with us about how they intend to use our data.
The CPPA also includes a novel “right of deletion” for information obtained in violation of the act or where consent is withdrawn. Yet this would not amount to a “right to be forgotten,” given an exception in the act for search engines acting with a legitimate interest.
This covers only some of the many tools in Canadian law for protecting personal privacy. But if this survey makes one thing clear, it’s that for Canadians, privacy is far from dead.
This article is republished from The Conversation, an independent nonprofit news site dedicated to sharing ideas from academic experts.
It was written by: Robert Diab, Thompson Rivers University.
Read more:
To protect our privacy and free speech, Canada needs to overhaul its approach to regulating online harms
Consumer Privacy Protection Act could lead to fines for deceptive designs in apps and websites
Federal Court sides with Facebook in privacy case tied to Cambridge Analytica affairRobert Diab, Professor, Faculty of Law, Thompson Rivers University
THE CONVERSATION
Mon, April 17, 2023
Changes to Canadian law will affect how data can be collected and distributed. (Shutterstock)
Despite early predictions that the internet would spell the end of privacy, it continues to be vital to who we are. Without privacy, we couldn’t sustain relationships or maintain our dignity or sense of self.
Yet our privacy is constantly threatened by ubiquitous surveillance and data collection by tech platforms, retailers, the police and other state agencies, as well as hackers and criminals.
Does privacy law in Canada do enough to protect us from these threats?
To help you decide, it may help to clarify the main features of the legal landscape — when public and private entities can infringe your privacy and what happens when they do.
Mon, April 17, 2023
Changes to Canadian law will affect how data can be collected and distributed. (Shutterstock)
Despite early predictions that the internet would spell the end of privacy, it continues to be vital to who we are. Without privacy, we couldn’t sustain relationships or maintain our dignity or sense of self.
Yet our privacy is constantly threatened by ubiquitous surveillance and data collection by tech platforms, retailers, the police and other state agencies, as well as hackers and criminals.
Does privacy law in Canada do enough to protect us from these threats?
To help you decide, it may help to clarify the main features of the legal landscape — when public and private entities can infringe your privacy and what happens when they do.
A constitutional right to privacy
Canadians receive protection from police and other government institutions under the Charter of Rights and Freedoms. And while the word “privacy” appears nowhere in the document, Section 8 still gives Canadians the right to be “secure against unreasonable search or seizure.”
Our highest court drew upon the Fourth Amendment case law in the United States to hold that police engage Section 8 when they search or seize something over which we have “a reasonable expectation of privacy.”
Courts have held that we have a privacy interest in anything that reveals intimate information about us, our lifestyle choices or our “biographical core.” This includes obvious things, like the content of our pockets, homes and digital devices – but it also includes less obvious things like our DNA, breath samples or subscriber information attached to our internet service provider accounts.
Where we do have a reasonable expectation of privacy in a place or thing, police generally need a warrant to search or seize it. In many cases, however, they don’t. They need only be authorized by law to carry out the search. The law, in turn, must be reasonable in striking an appropriate balance between law enforcement interests and personal privacy.
When police obtain evidence without a warrant, or act without authority, a court can exclude the evidence at that person’s criminal trial — though, in some cases, it may decline to do so.
Privacy in the private sphere
The Charter sets limits on what government officials and agencies can do to infringe on our privacy, but more often our privacy is threatened by private entities that gather data or information from us. What are the guardrails in place here and what are the consequences for violating them?
We have federal and provincial statutes to deal with privacy incursions by commercial entities. In some cases, we can sue civilians or businesses in court for breach of privacy.
Read more: Explainer: what is surveillance capitalism and how does it shape our economy?
The most important of these tools is the federal Personal Information Protection and Electronic Documents Act (PIPEDA), which contains rules about collecting, using and disclosing personal information by private sector entities in Canada.
PIPEDA applies to a wide range of commercial activity across all provinces, from large retailers to online platforms. British Columbia, Alberta and Québec have their own privacy laws that cover matters to which PIPEDA does not apply.
The main obligation in PIPEDA is that a company may not collect, use or disclose information about us unless they have our informed consent and use, or share it, for an identified purpose. The act empowers individuals to access information about themselves and to correct inaccuracies.
The Privacy Commissioner of Canada enforces the act, but has often complained of the weak tools at their disposal for doing so.
A better future for personal privacy?
Currently, parliament is debating the passage of Bill C-27, which would largely replace PIPEDA with the Consumer Privacy Protection Act (CPPA).
The new act will impose more stringent penalties for breaches and give authorities more enforcement tools. But it may also expand the scope of what private entities can do with our data by permitting with benefits “proportionate to” the impact on, or loss of, privacy.
At least one commentator believes the Privacy Commissioner of Canada will continue to permit data collection by social media companies and search engines for advertising purposes under the CPPA. But the act will require companies to be more explicit with us about how they intend to use our data.
The CPPA also includes a novel “right of deletion” for information obtained in violation of the act or where consent is withdrawn. Yet this would not amount to a “right to be forgotten,” given an exception in the act for search engines acting with a legitimate interest.
This covers only some of the many tools in Canadian law for protecting personal privacy. But if this survey makes one thing clear, it’s that for Canadians, privacy is far from dead.
This article is republished from The Conversation, an independent nonprofit news site dedicated to sharing ideas from academic experts.
It was written by: Robert Diab, Thompson Rivers University.
Read more:
To protect our privacy and free speech, Canada needs to overhaul its approach to regulating online harms
Consumer Privacy Protection Act could lead to fines for deceptive designs in apps and websites
'Done and dusted': Liberals' controversial online streaming bill back before Senate
Story by The Canadian Press • Yesterday
OTTAWA — The Liberal government's controversial online-streaming bill was back in the upper chamber on Tuesday, with one senator who had earlier opposed it saying she expected it to pass.
After more than a year of debate and revisions, Alberta Sen. Paula Simons said she would really like to see Bill C-11 "done and dusted" this week, and not because she wants to ram it through.
"For all the cynicism about the Senate, I think the Senate showed its merits with this bill," Simons said in a recent interview. "And I think we did a really good job of debating and discussing it."
Quebec Sen. Marc Gold, the Liberal government's representative in the Senate, said "the finish line is in sight" after he introduced a motion Tuesday that asked the Senate to adopt the bill so that it can become law.
"For Canada’s cultural sector, it has been a long road and a long wait, but the finish line is in sight," Gold said.
"For many in the industry, an important source of their income is inextricably linked to the passage of this bill."
If passed, Bill C-11 would update broadcasting rules to include online streaming and require tech giants such as YouTube, Netflix and Spotify to make Canadian content available to users in Canada — or face steep penalties.
Last month, the House of Commons adopted most of the Senate's amendments, which included measures to highlight the promotion of Indigenous languages and Black content creators and a change that sought to "reaffirm" the independence and freedom of expression of creators.
Senators also tweaked the bill to ensure that funds collected from tech giants would go toward promoting diversity, equity and inclusion.
The bill was subject to especially lengthy debate in the Senate and has sparked criticism from special-interest groups and content creators who feared the bill would cause the government to over-regulate the internet.
"All the debate about this bill has been completely polluted and very well-organized by bot campaigns," said Simons, adding that she still gets hundreds of emails weekly from automated campaigns that spread false information about the bill.
"People are being sold that this is a censorship bill, or that it's like 1984. It's like Stalin. It's like Hitler. It's like the Chinese government. It's all silly," she said.
"There were significant flaws in this bill, and we've made them better."
The Liberal bill is supported by the NDP and Bloc Québécois, but the Conservatives have called it a "censorship" bill, with Conservative Leader Pierre Poilievre even holding up George Orwell's "1984" science-fiction novel about Big Brother in the House while discussing the bill.
Simons, who said she sought to quiet the firestorm of disinformation surrounding the bill, had endorsed an amendment that would have added further protections for individuals who post content online, from comedy acts to instructional videos.
She said she wanted Canadians to actually talk about what's in the bill, as opposed to giving in to "fear-mongering."
Ultimately, the House of Commons rejected the amendment, which was also endorsed by YouTube, because MPs felt it would create a loophole for tech giants to avoid contributing to Canadian content.
"Bill C-11 does not and will not apply to user-generated content because, simply put, using a social-media service does not make you a broadcaster," Gold said Tuesday.
"Rest assured, the legislation will not interfere with or stifle the expression of Canadian voices."
While the bill isn't something she agrees with, Simons said she will support its passage.
"At the end of the day, the government ran on this bill. It was part of their election platform," Simons said — the Liberals had promised similar legislation during their previous minority-government mandate.
"I think there's also an understanding that there are limits to how much the Senate can push back if this is a hill to die on, or if this is profound public-policy disagreement. And the government at the end of the day has to be responsible for its choices."
When the bill is passed, a policy directive will be issued to the Canadian Radio-television and Telecommunications Commission, which will be tasked with enforcing the bill's provisions.
The CRTC is also required to consult with the public, and its reports must be made public, thanks to another Senate amendment that was accepted by the House.
This report by The Canadian Press was first published April 18, 2023.
Mickey Djuric, The Canadian Press
Note to readers: This is a corrected story. A previous version misspelled the first name of Sen. Paula Simons.
Story by The Canadian Press • Yesterday
OTTAWA — The Liberal government's controversial online-streaming bill was back in the upper chamber on Tuesday, with one senator who had earlier opposed it saying she expected it to pass.
After more than a year of debate and revisions, Alberta Sen. Paula Simons said she would really like to see Bill C-11 "done and dusted" this week, and not because she wants to ram it through.
"For all the cynicism about the Senate, I think the Senate showed its merits with this bill," Simons said in a recent interview. "And I think we did a really good job of debating and discussing it."
Quebec Sen. Marc Gold, the Liberal government's representative in the Senate, said "the finish line is in sight" after he introduced a motion Tuesday that asked the Senate to adopt the bill so that it can become law.
"For Canada’s cultural sector, it has been a long road and a long wait, but the finish line is in sight," Gold said.
"For many in the industry, an important source of their income is inextricably linked to the passage of this bill."
If passed, Bill C-11 would update broadcasting rules to include online streaming and require tech giants such as YouTube, Netflix and Spotify to make Canadian content available to users in Canada — or face steep penalties.
Last month, the House of Commons adopted most of the Senate's amendments, which included measures to highlight the promotion of Indigenous languages and Black content creators and a change that sought to "reaffirm" the independence and freedom of expression of creators.
Senators also tweaked the bill to ensure that funds collected from tech giants would go toward promoting diversity, equity and inclusion.
The bill was subject to especially lengthy debate in the Senate and has sparked criticism from special-interest groups and content creators who feared the bill would cause the government to over-regulate the internet.
"All the debate about this bill has been completely polluted and very well-organized by bot campaigns," said Simons, adding that she still gets hundreds of emails weekly from automated campaigns that spread false information about the bill.
"People are being sold that this is a censorship bill, or that it's like 1984. It's like Stalin. It's like Hitler. It's like the Chinese government. It's all silly," she said.
"There were significant flaws in this bill, and we've made them better."
The Liberal bill is supported by the NDP and Bloc Québécois, but the Conservatives have called it a "censorship" bill, with Conservative Leader Pierre Poilievre even holding up George Orwell's "1984" science-fiction novel about Big Brother in the House while discussing the bill.
Simons, who said she sought to quiet the firestorm of disinformation surrounding the bill, had endorsed an amendment that would have added further protections for individuals who post content online, from comedy acts to instructional videos.
She said she wanted Canadians to actually talk about what's in the bill, as opposed to giving in to "fear-mongering."
Ultimately, the House of Commons rejected the amendment, which was also endorsed by YouTube, because MPs felt it would create a loophole for tech giants to avoid contributing to Canadian content.
"Bill C-11 does not and will not apply to user-generated content because, simply put, using a social-media service does not make you a broadcaster," Gold said Tuesday.
"Rest assured, the legislation will not interfere with or stifle the expression of Canadian voices."
While the bill isn't something she agrees with, Simons said she will support its passage.
"At the end of the day, the government ran on this bill. It was part of their election platform," Simons said — the Liberals had promised similar legislation during their previous minority-government mandate.
"I think there's also an understanding that there are limits to how much the Senate can push back if this is a hill to die on, or if this is profound public-policy disagreement. And the government at the end of the day has to be responsible for its choices."
When the bill is passed, a policy directive will be issued to the Canadian Radio-television and Telecommunications Commission, which will be tasked with enforcing the bill's provisions.
The CRTC is also required to consult with the public, and its reports must be made public, thanks to another Senate amendment that was accepted by the House.
This report by The Canadian Press was first published April 18, 2023.
Mickey Djuric, The Canadian Press
Note to readers: This is a corrected story. A previous version misspelled the first name of Sen. Paula Simons.
The Canadian Press
Mon, April 17, 2023
OTTAWA — A judge has dismissed the federal privacy watchdog's bid for a declaration that Facebook broke the law governing the use of personal information in a case flowing from the Cambridge Analytica affair.
In his ruling, Justice Michael Manson said the privacy commissioner had not shown that the social media giant, now known as Meta, failed to obtain meaningful consent from Facebook users or neglected to adequately safeguard their information.
A 2019 investigation report from Daniel Therrien, federal privacy commissioner at the time, and his British Columbia counterpart cited major shortcomings in Facebook's procedures and called for stronger laws to protect Canadians.
The probe followed reports that Facebook let an outside organization use a digital app to access users' personal information, and that data was then passed to others.
The app, at one point known as "This is Your Digital Life," encouraged users to complete a personality quiz but collected much more information about the people who installed the app as well as data about their Facebook friends.
Recipients of the information included British consulting firm Cambridge Analytica, which was involved in U.S. political campaigns and targeted messaging.
About 300,000 Facebook users worldwide added the app, leading to the potential disclosure of the personal information of approximately 87 million others, including more than 600,000 Canadians, the commissioners' report said.
The commissioners concluded that Facebook violated Canada's privacy law by failing to obtain valid and meaningful consent of installing users and their friends, and that it had "inadequate safeguards" to protect user information.
Facebook disputed the findings of the investigation and refused to implement its recommendations.
The company has said it tried to work with the privacy commissioner's office and take measures that would go above and beyond what other companies do.
In early 2020, Therrien asked the Federal Court to declare Facebook broke the law governing how the private sector can use personal information, the Personal Information Protection and Electronic Documents Act, known as PIPEDA.
In turn, Facebook filed its own action, asking the court to toss out the privacy watchdog's finding that the social media giant's lax practices allowed personal data to be used for political purposes.
Facebook said the commissioner's office improperly embarked on a broad audit of the company's privacy practices in the guise of an investigation into complaints about a specific breach of the law.
In a companion ruling, Manson dismissed Facebook's application.
But the judge also rejected the privacy commissioner's arguments about the social media company's practices.
The commissioner had contended that Facebook failed to obtain meaningful consent from users before disclosing their information to the "This is Your Digital Life" app.
The watchdog said while Facebook verified the existence of privacy policies, and its Platform Policy and Terms of Service required third-party applications to disclose the purposes for which information would be used, it did not manually verify the content of these third-party policies.
The commissioner also said that Facebook provided no evidence of what users were told upon installing the "This is Your Digital Life" app.
Facebook argued that its network-wide policies, user controls and educational resources amounted to reasonable efforts under PIPEDA. It also criticized the commissioner's suggestion that it manually review each app's privacy policy as impractical, as it would require legal staff to examine millions of documents.
Manson said the court was left to "speculate and draw unsupported inferences from pictures of Facebook's various policies and resources as to what a user would or would not read; what they may find discouraging; and what they would or would not understand."
As a result, the commissioner failed to meet the burden of establishing that Facebook breached the law concerning meaningful consent, he wrote.
Manson also agreed with Facebook's argument that once a user authorizes it to disclose information to an app, the social media company's safeguarding duties under PIPEDA come to an end.
Meta said in a statement Monday it was pleased with the ruling. "In the last few years, we have transformed privacy at Meta and built one of the most comprehensive privacy programs in the world."
Vito Pilieci, a spokesman for the privacy commissioner, said the office initiated the court application to protect Canadians' privacy. "With this in mind, we are reviewing the court's decision to determine the next steps."
This report by The Canadian Press was first published April 17, 2023.
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Meta funds a limited number of fellowships that support emerging journalists at The Canadian Press.
Jim Bronskill, The Canadian Press
