Introduction to Information and Privacy Law

AuthorBarbara Von Tigerstrom
Information is central to almost every aspect of human life. In our
relationships with ever y part of government, with companies t hat pro-
vide the goods and services we use, and with other member s of society
in our personal and working lives, getti ng access to information and
controlling who has access to it plays an important role, promoting a
range of different rights and interests. Controlling access to inform a-
tion about ourselves is often understood to be a key element of the right
to privacy, but privacy also extends beyond information to protect our
identities, our personal space, and even our bod ies from outside scru-
tiny and interference.
Not surprisingly, then, information and privacy law is a broad and
varied field. It includes principles and remed ies in the common law and
civil law, as well as many federal, provi ncial, and territoria l statutes
and regulations. As w ill be discussed below and in later chapters, it is
also inf luenced in important ways by developments in other juri sdic-
tions and at global and regional levels. It deals with the rights and obli-
gations of individuals, compan ies, and other private organ izations, and
all levels of government. A range of different approaches to oversight
and regulation can al so be found in this area, including self-regula-
tion and industry standards, commissioners w ith a variety of roles and
powers, and courts involved in deciding civil claims or dealing w ith
appeals or applications for review. The aim of this book is to provide
a comprehensive introduction to this import ant and dynamic area of
the law, which can help readers gain a basic understanding of its main
elements and serve as a foundation for further investigation.
The scope of information and privacy law as a subject could be defi ned in
different ways, because it is compri sed of a range of related but distinct
components. The approach taken in this book is to be fa irly inclusive,
dealing with civil claims th at can be used to address pr ivacy issues, as
well as legislation th at governs both access to information and protection
of personal information in the public and private sectors. It also deals
with the law th at regulates the sending of commercia l electronic mes-
sages, because thi s intersects with pr ivate sector personal information
legislation and addresses some of the same concerns. In some respects,
the subject of each chapter is discrete, but each of them a lso overlaps
with one or more of the others in some areas. These point s of overlap or
intersection are highlighted i n each chapter by cross- references to other
Chapter 2 deals with c ivil claims for violation of privacy, examining
the ways in which various causes of action can be used to pursue rem-
edies for individuals whose pr ivacy has been violated by other indiv iduals
or by organizations. The development of this area of the law i llustrates
the roles of legislatures and t he courts in establishing such remedies: in
some cases, the law has developed incrementally through the recogni-
tion and delineation of common law causes of action by t he courts, wh ile
in others, specific legi slation has been enacted to accomplish the same
goals. Noticeably different approaches and choices can al so be seen in
comparing other juris dictions to Canada and to each ot her, and in com-
paring common law and civil law jurisprudence within Canada. All of
these developments grapple with fund amental questions about privacy
and its protection. For example, what exactly are the intere sts at stake i n
protecting privacy, and is there a common thread th at unites them, or are
they distinct intere sts that should have distinct remedies? How should
we define the threshold that w ill determine which violations de serve a
remedy? In drawing those lines, how do we account for other rights or
interests, such as freedom of expression or legitimate personal intere sts
of other indiv iduals?
Chapters 3 and 4 deal with the two main part s of public sector infor-
mation and privacy legislation, often referred to as “freedom of informa-
tion and privacy” (FOIP) or “access to information and privacy” (ATIP)
legislation. Chapter 3 focuses on acces s to information, that is, the
Introduction to In formation and Privacy L aw 3
public’s right of access to records that are in the custody or control of
government or other public sector institutions. This right gives effect
to important values and intere sts, including government transp arency
and accountability, as well as the meaning ful participation of citizen s in
democratic processes. There are some circum stances, however, in which
effective governance could arguably be fur thered by protecting certain
information from public scrutiny, and numerous instances in which the
value of transparency must g ive way to a range of other important inter-
ests, including person al privacy, national secur ity, and a fair competitive
environment for business innovation. The underlying pur poses and bal-
ancing of interests can be seen throughout the courts’ and commission-
ers’ interpretations of key questions ab out the scope of the right of acces s:
to what bodies and what records should the right of acces s apply, and
when should exemptions prevent disclosure of information that would
otherwise f all within the scope of that right? The implementation and
oversight of the access regime also raises importa nt questions about the
powers, rights, and responsibilities of various actors, including heads of
public bodies, commissioners, court s, and affected third part ies.
Chapter 4 focuses on personal i nformation in the public sector,
looking at fair informat ion principles as t hey apply to personal i nforma-
tion in the hands of government actors. Access to i nformation is also at
issue here, in this c ase, access to one’s own personal inform ation. Like
the general right of access to inform ation, access to one’s own informa-
tion also helps to ensure the transparency and accountability of gov-
ernment. The right to access and, where neces sary, seek correction of
one’s own information also promotes individuals’ autonomy by giving
them the right to know about and together with other fair informa-
tion principles — exercise some degree of control over information that
others have about them. These rights al so indirectly protect other inter-
ests by ensur ing that the information used to make decisions affecting
individuals i s accurate. Other principles govern the purposes for which
public bodies can collect, use, and di sclose personal inform ation, and
when they can do so with or without the individuals’ consent, thus bal-
ancing individual s’ right to be informed about and control what is done
with their in formation again st other public interests. Chapter 4 goes on
to discuss t he measure s that public bodies should take to safeguard the
security and integrity of personal inform ation under their control and,
finally, the mechanism s available to enforce the legislation’s require-
ments, which remain relatively wea k in many jurisdictions.
Chapter 5 also exam ines fair informat ion principles relating to per-
sonal information, th is time in the private sector, leading us to con-
sider how the same basic principles should apply when it is not the

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