Facebook targets procedural fairness at OPC in court filing

Facebook Inc.'s request that Federal Court throw out a report from the federal Office of the Privacy Commissioner may highlight the issue of procedural fairness within the OPC, and could be a preview of what the social media giant will want in any update to privacy law, according to several experts who reviewed the filing. While saying she would be surprised if the court took up the review, Teresa Scassa, a law professor at the University of Ottawa and former adviser to the OPC under commissioner Jennifer Stoddard said that Facebook's move might be in anticipation of an update to the law. "This might be also signalling that there are concerns about procedural fairness; that if the commissioner were given order-making powers, procedural fairness may be an issue," she said in a phone interview. In the April 15 application for judicial review, Facebook asked the court for an order quashing the OPC's report from April 2019, arguing in the application that the "the OPC should never have investigated the Complaint or should have discontinued it once the investigation failed to turn up the required Canadian nexus." Once the OPC did initiate the investigation, Facebook argues in its filing, the federal privacy watchdog "did not disclose the true, sweeping scope of the Complaint and the Investigation until just before the Report’s release. Nor did the OPC disclose the documents on which it relied." As such, Facebook was denied a level of "procedural fairness" in the proceeding, the company claims, and "did not know the allegations it had to meet and was denied a fair opportunity to respond to the Investigation." In other words, Facebook did not fully know the charges against it and was not given a chance to look at the evidence against it. This is despite the fact that Facebook was being investigated by a body -- the OPC -- charged with deciding whether or not a private entity has violated the Personal Information Protection and Electronic Documents Act (PIPEDA), the Canadian federal privacy law. According to David Fewer, director of the Canadian Internet Policy and Public Interest Clinic at the University of Ottawa, the office's role as an adjudicator of law is "not often examined, and so it will be interesting to see the evidence of what happened." "There are some interesting arguments to be made about an organization's rights to know the case against it and … answer," Fewer wrote in an email to The Wire Report. In a post published on her blog Thursday, Scassa wrote that "the judicial review application seems to be a bit of a long shot." It may be intended as a shot across the bows of both the Office of the Privacy Commissioner and the federal government. "This application for judicial review, regardless of its success, puts on the record concerns about procedural fairness that will need to be front of mind in any reforms that increase the powers of the Commissioner," Scassa wrote. "I hope the court does eventually hear the merits of the arguments - whether it be through this application or the original one filed by the OPC," nNovation, LLP lawyer and former OPC adviser Kris Klein said in an email to The Wire Report, adding that the issue of procedural fairness makes "important arguments that could potentially shed light on the seemingly mysterious way in which the OPC conducts investigations." Asked if the proceedings could have an impact on PIPEDA reform, Klein wrote that: "I agree that these cases could very well influence privacy law reform. Facebook is, in a way, arguing that the OPC is already a full on administrative tribunal that owes certain procedural fairness obligations." "Going forward, if the OPC does get more enforcement powers it will definitely have to re-visit how it investigates and adjudicates matters. I totally agree that these cases are foreshadowing some of these issues that will eventually get fleshed out once the government turns its attention to modernizing our privacy laws." The application for judicial review comes after the OPC took the company to Federal Court in February, after announcing its intention to do so in April 2019. The OPC lacks the power to compel companies to comply with the Personal Information Protection and Electronic Documents Act (PIPEDA), and the lack of order-making power has been a long-stranding complaint of Daniel Therrien, the privacy commissioner. For the last year, the Liberal government has been tipping an update to the federal privacy law. Facebook's application for judicial review also rests on the company's contention that there is no evidence that Cambridge Analytica improperly processed the data of any Canadians, the "Canadian nexus." The company's filing asserts that the complaint which launched the OPC investigation "did not allege that the complainants’ personal information had been improperly used or disclosed by Facebook; it did not so much as suggest that Facebook had collected the complainants’ personal information in the first place or even that they were Facebook users." Rather, the company asserts in the filing, the complaint "invited the OPC to perform a broad examination of Facebook’s privacy practices," which the OPC did "unreasonably and without jurisdiction." — With reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Facebook targets procedural fairness at OPC in court filing

Broadcast | April 27, 2020

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Facebook targets procedural fairness at OPC in court filing

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