The regulatory landscape for privacy protection in canada's private sector

• Author: Lesley A. Jacobs
• Pages: 17-42

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#chapter2

THE REGULATORY LANDSCAPE FOR

PRIVACY PROTECTION IN CANADA’S

PRIVATE SECTOR

A. INTRODUCTION

e existing regulatory system for privacy rights protection in Canada is

complex. It reects the fact that Canada is a federal state where privacy is a

concern for both the Government of Canada and the provinces, and that it

serves multiple purposes. From a comparative policy development perspec-

tive, Canada was slow in establishi ng a privacy rights protection scheme.

e development of this system spans a mere four decades — other coun-

tries such as the United States have engaged privacy rights for much long-

er. Ironically, because Canada was slow to develop privacy legislation, the

system established largely conforms to international norms and standa rds

for a competitive market economy, such as those set by the Organisat ion for

Economic Co-operation and Development (OECD), which, in , spear-

headed the eorts to promote convergence in privacy rights protections in

advanced industrial countr ies.

is chapter provides a map of the regulatory landscape for privacy pro-

tection in Canada, emphasizing especially the privacy protection system for

the private sector. is map is built on the important observation that, in

Canada, there is a marked dierence between privacy protection in the pub-

lic sector and in the private sector. Privacy protection in the public sec-

tor was addressed in the rst wave of legislation in the early s, designed

 is mapping exercis e draws heavily on Lesley Jac obs with Kaitlyn M atulewicz, “Protect-

ing Privacy R ights in the Emergi ng Digital Economy: Can ada’s Regulatory Scheme, Its

Adaptabilit y, and Its Future” (Unpublished report prepare d for the Social Sciences a nd

Humanities Re search Council of Can ada Presidential Initi ative on Research on Canada’s

Emerging Digit al Economy, November ).

Privacy Rights in th e Global Digital Economy18 |

to promote better access to information held by governments and to pro-

tect citizens from misuses of their personal information by governments.

Privacy protection in the private sector emerged at the beginning of the

twenty-rst century, oriented initially towards strengthening competit ion

and improving economic eciency in the Canadian economy. e main

theme developed in this chapter is that the privacy protection measures for

the private sector should become more oriented towards supporting pri-

vacy rights mobilization among Canadian consumers, clients, customers,

citizens, and workers through diverse paths to justice that enable them to

resolve their legal problems fairly.

B. PRIVACY PROTECTION FOR MULTIPLE PURPOSES

Governments in Canada enter into the privacy protection eld for multiple

purposes, not just one purpose. Moreover, these purposes dier signi-

cantly, depending on whether the privacy protection eld is in the public

sector or the private sector. When regulatory systems are developed to ad-

vance multiple goals or objectives, the possibility t hat these goals may be at

cross-purposes is a genuine challenge. is is, in fact, the case in Canada’s

privacy protection system.

Privacy protection in the public sector in Canada i s designed principally

to serve two purposes: () to make more transparent and visible what person-

al information governments collect and how they use it; and () to protect

individual citizens f rom intrusive and arbitrary sur veillance by govern-

ments. e rst purpose can be characteri zed as intended to promote better

democratic governance; the second can be characteriz ed as an objective of

individual rights promotion. As the mapping of privacy protection in the

public sector, described later in the chapter, shows, the legislative framework

for most governments involves a combination of access-to-information

laws — promoting more democratic public institutions — and privacy laws

— promoting privacy rights — supported by an oversight body tasked with

advancing both objectives. In the public sector, it is obvious that there can

be tensions between improving access to the information governments have

and protecting the personal information of individual citizens. Sometimes,

access-to-information requests from government are focused precisely on

accessing the sorts of personal in formation that privacy rights a re intended

to protect. In practice, when it comes to the personal information that gov-

ernments collect and use, it is well understood in the regulatory system

that there is a delicate balance between acc ess to information and the right

to privacy. Government agencies may, for example, gather personal infor-

mation for the sake of national security or criminal investigations, which