Introduction to Information and Privacy Law

• Author: Barbara Von Tigerstrom
• Pages: 1-54

1

CHAPTER 1

INTRODUCTION TO

INFORMATION AND

PRIVACY LAW

Information is central to almost every aspect of human life. In our

relationships with every part of government, with companies that pro-

vide the goods and services we use, and with other members of society

in our personal and working lives, getting 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 informa-

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 bodies 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, provincial, and territorial statutes

and regulations. As will be discussed below and in later chapters, it is

also influenced in important ways by developments in other jurisdic-

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 also be found in this area, including self-regula-

tion and industry standards, commissioners with a variety of roles and

powers, and courts involved in deciding civil claims or dealing with

appeals or applications for review. The aim of this book is to provide

a comprehensive introduction to this important and dynamic area of

INFORM ATION AND PRIVACY LAW IN CANADA2

the law, which can help readers gain a basic understanding of its main

elements and serve as a foundation for further investigation.

A. THE SCOPE OF THIS BOOK

The scope of information and privacy law as a subject could be defi ned in

different ways, because it is comprised of a range of related but distinct

components. The approach taken in this book is to be fairly inclusive,

dealing with civil claims that can be used to address privacy 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 that regulates the sending of commercial electronic mes-

sages, because this intersects with private 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 also 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

chapters.

Chapter 2 deals with civil 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 illustrates

the roles of legislatures and the 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 legislation has been enacted to accomplish the same

goals. Noticeably different approaches and choices can also be seen in

comparing other jurisdictions to Canada and to each other, and in com-

paring common law and civil law jurisprudence within Canada. All of

these developments grapple with fundamental 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 interests that should have distinct remedies? How should

we define the threshold that will determine which violations deserve a

remedy? In drawing those lines, how do we account for other rights or

interests, such as freedom of expression or legitimate personal interests

of other indiv iduals?

Chapters 3 and 4 deal with the two main parts 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 access to information, that is, the

Introduction to In formation and Privacy L aw3

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 interests, including government transparency

and accountability, as well as the meaningful participation of citizens in

democratic processes. There are some circum stances, however, in which

effective governance could arguably be furthered by protecting certain

information from public scrutiny, and numerous instances in which the

value of transparency must give 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 purposes 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 access apply, and

when should exemptions prevent disclosure of information that would

otherwise fall within the scope of that right? The implementation and

oversight of the access regime also raises important questions about the

powers, rights, and responsibilities of various actors, including heads of

public bodies, commissioners, courts, and affected third parties.

Chapter 4 focuses on personal information 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 case, access to one’s own personal information. Like

the general right of access to information, access to one’s own informa-

tion also helps to ensure the transparency and accountability of gov-

ernment. The right to access and, where necessary, 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 ensuring 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 disclose personal information, 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 information under their control and,

finally, the mechanisms available to enforce the legislation’s require-

ments, which remain relatively weak in many jurisdictions.

Chapter 5 also examines fair information principles relating to per-

sonal information, this time in the private sector, leading us to con-

sider how the same basic principles should apply when it is not the