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By Terry McQuay, CIPP, CIPP/C

Federal commissioner addresses CBA

On August 17, the privacy commissioner of Canada, Jennifer Stoddart, spoke at the Canadian Bar Association (CBA) Legal Conference and Expo. In her speech, Ms. Stoddart noted how technological advances have resulted in personal information moving rapidly around the globe, and how this trend has direct implications for lawyers and the legal profession, including the following impacts:

Private-sector privacy laws are affecting the personal information practices of law firms:

  • a decision by the Office of the Privacy Commissioner of Canada (OPC) found that the practice of verifying the solvency of potential defendants by conducting credit checks on them without their consent is contrary to the Personal Information Protection and Electronic Documents Act (PIPEDA);
  • the Information and Privacy Commissioner of Alberta has ruled that even though law firms may act as agents for clients, they are responsible for applying privacy legislations, e.g.:  

          o the web publication of a document with the names, addresses and Social Insurance Numbers of a client firm's employees is a clear violation of such legislation.

The Internet is creating a new context for including peoples' names when decisions of judicial, quasi-judicial and administrative bodies are published:

  • Ms. Stoddart noted that she is not convinced that the broad public needs to know the names of individuals involved or requires access to intimate personal details through decisions posted widely on the Internet;
  • when cases were accessible only in specialized legal texts, or search engines accessible to legal professionals only, the concept of practical obscurity always operated in favour of privacy protection and the need-to-know principle;
  • the educational value of these decisions is not reduced by replacing names with initials.

In the online world, users now generate much of the information that is disseminated about lawyers, for example, through rate-your-lawyer Web sites:

  • Internet postings are not constrained by the traditional ethical policies of journalists.

Lawyers whose work includes privacy can no longer define themselves as practicing in a given jurisdiction, or as an expert in the law of a given province:

  • lawyers need to explain to clients the global reality of regulation and data flow;
  • the OPC is working with its provincial counterparts to coordinate regulation;
  • privacy protection cannot be undertaken on a country-by-country basis. A single, global standard is not necessary, but:

          o we should strive for basic levels of privacy protection around the world with coordinated approaches to regulatory enforcement;
          o the OPC recently intervened at the Appellate level in support of the Federal Trade Commission's enforcement actions against a U.S.-based information broker operating online.

Ms. Stoddart encouraged the Canadian Bar Association to continue to take a very active role in law reform, noting that for many privacy issues—such as identity theft, anti-spam and copyright areas—the CBA's input is critical.

Terry McQuay, CIPP, CIPP/C, is the Founder of Nymity, which offers Web-based privacy support to help organizations control their privacy risks. Learn more at www.nymity.com.

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