Canadian law should codify privacy as a human right: OPC

OTTAWA — Federal privacy commissioner Daniel Therrien told reporters Tuesday morning that there is a “crisis of trust” as he launched the Office of the Privacy Commissioner’s annual report, citing polling showing that 90 per cent of Canadians are concerned about their ability to protect their privacy. The commissioner called for Canada’s privacy laws to include a human rights framework. Such a law, the report said, is needed in order to respond to the “rapid growth of information technologies pervading the economy and government alike.” New digital technologies, he said, have been “shown to be harmful to rights too many times, including privacy and democracy,” Therrien said. “Given that privacy is a fundamental human right, and a necessary precondition to the exercise of other fundamental rights, such as freedom, equality, and democracy,” Therrien told reporters at the press conference, “the starting point for reform should be to give privacy laws a rights-based foundation.” Therrien criticized the Liberals’ Digital Charter, launched in June, as a weak attempt to strengthen Canadian privacy law and the enforcement mechanisms of his office, saying that it still left his office with less enforcement power than his counterparts in other countries. The charter outlined a number of recommendations for reforming Canada’s privacy laws, but the government has yet to introduce legislation to put those recommendations into effect. “I don’t see why the Canadian regulatory agency would have less power than its equivalents in countries like the United States and Europe, with which Canada has dealings. I don’t understand that,” he said according to a simultaneous translation, calling elements of the charter problematic. Under the new rules included in the charter, “the commissioner's powers would be limited. We wouldn’t have a broad scope of power.” He said the OPC’s powers would be defined by the charter, and the commissioner couldn’t issue fines, “contrary to what’s done in many other countries.” In the proposed update to the Personal Information Protection and Electronic Documents Act (PIPEDA), the OPC would be given solely the option to make cease-and-desist orders, which Therrien today said amounted to a “nuclear bomb” of interventions, adding that the charter as proposed by the government would not give the OPC much nuance in terms of its order-making powers. The proposed updates to the privacy law in the Digital Charter would not give the OPC the power to issue fines. In a press scrum after a cabinet meeting Tuesday, Innovation and Industry minister Navdeep Bains defended his department's approach to the OPC laid out in the charter. "I think the Digital Charter has been very consistent with the issues raised by the privacy commissioner. When he's talking about stricter enforcement, first of all, we have taken steps by updating PIPEDA," Bains told reporters according to a transcript. "We introduced fines of $100,000 per breach and have strengthened our privacy laws. We've also indicated on a going forward basis as the principles outlined in the Digital Charter, stricter enforcements for individuals that do not respect the law," he said, referring to fines that came with updates to PIPEDA that came in the fall of 2018. In addition to his call for a privacy law to be grounded in human rights, Therrien also said that any updated privacy law must end the status-quo of self-regulation for companies, making specific reference to data giant Facebook Inc. The OPC said Facebook violated Canadian federal privacy law when the privacy commissioner released the results of his investigation into Facebook’s role in the Cambridge Analytica scandal. ”It is untenable that organizations like Facebook are allowed to reject my office’s findings as mere opinions,” Therrien said Tuesday. “The law should no longer be drafted as an industry-suggested code of best practices -- that companies are free to adopt or not -- but rather as a set of enforceable rights and obligations.” Responding to a question from The Wire Report, Therrien also said that other areas of government may be needed to properly regulate a company like Facebook. “You need strong data protection laws with large fines. Is that enough? Perhaps not,” he said. “I think it’s a combination of various areas of the law that will bring us towards a potential solution.” The Cambridge Analytica scandal broke when Christopher Wylie, the Canadian who helped build Cambridge Analytica, blew the whistle on the company. It was later revealed that he was paid $100,000 for services performed under a separate company for the Liberal Caucus Research Bureau. Back in April, the OPC said that it would be taking Facebook to Federal Court to force it to cooperate with the office. The lawsuit has not yet been filed, but Tuesday Therrien said his office would do so soon. The commissioner also today reiterated his call for enforcement mechanisms like order-making powers, fines for non compliance, and “proactive inspections to ensure that organizations are demonstrably accountable for their privacy practices.” The release of the annual report caps off a year for the OPC which saw the investigation into Facebook’s role in the Cambridge Analytica scandal, as well as a separate investigation into the role of AggregateIQ (AIQ) in the same affair. In its investigations into Facebook and AIQ; in announcing a five-fold increase in data breaches this year; in a joint statement with provincial privacy commissioners; in requests for better funding: the commissioner has repeatedly called for more power and resources for his office to better cope with the changing nature of data collection. — With reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

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Canadian law should codify privacy as a human right: OPC

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