Experts say there is no road map for a Facebook-OPC court fight

If the Office of the Privacy Commissioner takes Facebook Inc. to Federal Court over the social media and data giant’s refusal to implement the office’s recommendations, the case will be the first of its kind — testing the limits of Canada’s privacy legislation, according to legal experts. Last week, commissioner Daniel Therrien released his findings after a year-long investigation into Facebook’s consent policies flowing out of the Cambridge Analytica data-mining scandal. The report, which was triggered by a complaint from NDP MP Charlie Angus, found that Facebook violated the Personal Information Protection and Electronic Documents Act (PIPEDA), Canada’s private-sector privacy legislation. Facebook has thus far refused to implement any of the OPC’s recommendations. “It’s almost amazing that … we don’t have more judicial interpretations of the legislation” given PIPEDA had been in force for almost two decades, David Fewer, director of the Canadian Internet Policy and Public Interest Clinic at the University of Ottawa, said in a phone interview. “The OPC has never actually had to take an organization, full-on, to court,” said Kris Klein, a lawyer with nNovation, LLP and a former advisor to the Office of the Privacy Commissioner. According to Fewer, the case will drill down into what he perceives as a grey area in Canadian privacy law. The commissioner, he said, rests somewhere between an ombudsman in that he works to reach resolutions, and an adjudicator in that he issues findings on the subject of the law. “It’s a weird mix. I think part of that belief in how we were gonna do privacy in the federal private sector, commercial context comes out here,” Fewer said. Privacy “is plainly a right, but it’s a right with only imperfect remedies.” An OPC victory in the case would signal a move toward a more confrontational approach from the office going forward, Fewer said. Should the OPC lose the case, or the outcome not be seen to be satisfactory for privacy advocates, Fewer said, provincial courts may become the preferred avenue for seeking redress, rather than the OPC and federal law. “It’s entirely possible that we could see class actions against Facebook, and asking Ontario courts to do what the federal government has not done.” “Certainly, we’ve seen a lot more class action lawsuits in Canada,” said Teresa Scassa, a Law Professor at the University of Ottawa and former adviser to the OPC under commissioner Jennifer Stoddard. “I do think that is an indication that people are not satisfied with other recourses and feel that this is a more effective direction to go in.” Klein noted a 2017 case involving a Romanian company -- Globe24h -- which was harvesting and republishing Canadian legal documents. That case resulted in a court order to deindex search hits internationally because, the court ruled, the Romanian website violated Canadian privacy laws. That case was not a direct parallel, however, because the OPC acted as an intervenor to the complainant, a private citizen. In 2015 the OPC squared off against BCE Inc. and its relevant advertising program. In its report, the OPC said that the telecom failed to obtain proactive consent from users in the program, and thus was in violation of PIPEDA. When Bell and the OPC failed to come to a resolution, the OPC threatened to go to Federal Court, and Bell backed down and implemented the OPC’s recommendations. In June 2017, the Supreme Court of Canada ruled that Alphabet Inc.’s Google would have to de-list links to a company that Equustek Solutions Inc. said infringed on its products. But in November 2017, a U.S. court in California told Google that it didn’t have to follow the SCC’s ruling. At issue in the Facebook case, according to Fewer, is a question of how narrowly-focused the case will be -- that is, whether it will look at whether Cambridge Analytica actually processed Canadian data, or if it will agree with the OPC’s interpretation that the privacy issue is that Canadians’ information was collected by the app. In its response to the OPC’s investigation, as detailed in last weeks report, Facebook maintains that there is no way to know that the researcher responsible for the data-scraping app used data from any Canadians. “I think that the privacy commissioner says ‘wait a minute, the app clearly involved Canadians and the app is what’s at issue here, and so we’re looking at that,’” Fewer said. “It’s always been a problem that a friend of mine on Facebook can affect how my information is dealt with, and I think the privacy commissioner has finally called them out on that.” “Facebook basically says ‘this is how apps work, and everybody knows that’s how apps work, and you use Facebook regardless,’” he said. Klein, who worked as an advisor to the OPC from 2005 to 2007, said in a phone interview that he was skeptical that the tension would actually play out in open court. He said that during his time as a lawyer at the OPC, when the office was seeking an organization’s compliance, a game of brinksmanship took place. “They would ignore our recommendations. I would write to them and I would say ‘here’s my draft statement of claim, here’s my draft press release. Can I hear back from you by Thursday?’ And on Wednesday they would call me and say ‘now that we understand that you’re serious about this, we’re going to comply,’” Klein said. The OPC hasn't yet filed anything in the case, a search of the Federal Court database on May 1 showed. On Monday, NDP MPs Charlie Angus and Matthew Dubé held a press conference on Parliament Hill calling on Prime Minister Justin Trudeau to respond to the OPC’s findings. Last week Angus renewed his call to break-up what he called the “data-opolies,” echoing calls that have come from U.S. Democratic presidential nominee hopeful Elizabeth Warren. “It’s a shot across the bow to the federal government,” Angus said in a phone interview. “Can they ignore federal law, yes or no?” Ann Cavoukian, the privacy expert-in-residence at Ryerson University and the former Ontario Privacy Commissioner, said that no matter the outcome, the fact that the case exists at all is significant. “It’s not the strength of the fines or lack thereof. It’s the fact that the federal privacy commissioner is taking this to Federal Court,” she said in a phone interview. — With reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

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Experts say there is no road map for a Facebook-OPC court fight

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