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Source: Globe and Mail

Posted on December 16, 2003

      Remember George Radwanski? The former federal privacy commissioner is long gone - buried under a mound of dubious expense account chits -- and greatly unmissed.

      But his ghost is present and, in January, it is due to make a reappearance. That's when the federal privacy legislation he championed, the Personal Information Protection and Electronic Documents Act (PIPEDA), lands on the doorsteps of seven provinces, including Ontario.

      The seven failed to pass privacy legislation of their own this year. For their sin, they automatically inherit PIPEDA and will be governed by it until theirs comes into effect. Quebec, Alberta and British Columbia have created privacy acts and are spared from PIPEDA. The seven other provinces face privacy issue confusion, perhaps chaos.

      Companies, especially the companies that deal with retail customers and the scads of personal information collected from them, will have to get used to the federal act. Then, when the province in which they do business finally gets in the game, they will have to deal with the provincial act.

      Many companies, out of ignorance or laziness, won't know how to deal with either. Ontario privacy commissioner Ann Cavoukian says more than 80 per cent of businesses in the province are unaware that PIPEDA comes into effect in two weeks, which means they are sitting ducks for privacy complaints and the nasty headlines they could create.

      It is remarkable so many companies are clueless about privacy legislation. Since Mr. Radwanski became the federal privacy czar in 2000, privacy has been a big and divisive issue. Unless you were living in a hole in Resolute, you would have been bombarded with news stories, speeches, presentations, seminars and embarrassing incidents about privacy, many of them generated by Mr. Radwanski himself.

      For instance, he thrust Air Canada into the headlines after it allegedly distributed personal information about Aeroplan members, including credit ratings, to third parties without customer consent. In another case, he slapped Canada Post for selling change-of-address information to marketing agencies. The posties argued this was a routine activity, but Mr. Radwanski said the practice could continue only with explicit permission from a resident who's about to change address.

      Privacy legislation anywhere tries to find a balance between an individual's rights and a corporation's ability to conduct business. Thanks largely to Mr. Radwanski's privacy zealotry, PIPEDA, which came into force in early 2002, is fairly tough. It received the seal of approval from the European Union, whose privacy legislation is considered muscular by global standards. The act applies to any information that can identify an individual, such as credit card or social insurance numbers.

      Companies need consent to collect, use or disclose personal information. The problem is defining consent. Consent can be implied. For example, if you buy a dishwasher from Sears, you probably wouldn't mind if Sears used your personal information to offer you other company products or services. But you probably wouldn't want Sears to sell your personal information, depending on its degree of sensitivity, to a third party without your permission (explicit approval in advance is known as opt-in consent; opt-out consent means the company can use your information unless you say no).

      If there's a flaw in the federal privacy act, it's that it's somewhat vague on which situations require opt-in consent and which can get by with opt-out consent.

      Ontario's first attempt at passing privacy legislation was a disaster. It required explicit approval for virtually everything; it didn't even allow companies to market products to existing customers without their consent. The Canadian Marketing Association said the legislation "would turn Ontario into a privacy island in North America."

      The subsequent draft was watered down somewhat to appease commercial interests, but the legislation got buried by the election. Presumably, the new Liberal government will put its own privacy law into effect next year, but it's unclear when.

      Confusion will reign in the meantime. In Ontario and six other provinces, PIPEDA will be the law as of next month. Many companies either don't know it exists or, if they do, will have trouble interpreting its vagaries. Some will not realize that PIPEDA may not apply to companies that do business only within the province. Furthermore, the feds don't have the resources to help companies learn about privacy law or help them create the internal systems to comply with it. There will be more confusion when the provinces without privacy legislation fill the void.

      Alberta and B.C. got it right by passing privacy legislation that was short, concise and elegant (their acts, which are almost identical, are about 30 pages long compared with more than 120 pages for Ontario's proposed act). Their laws mean PIPEDA and its flaws won't intrude on their lives. Ontario and the other laggards could have made things simpler for their companies by following the leads of Alberta and B.C. Instead, they will have Mr. Radwanski's legacy to deal with.

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