Realtor advertises purchase price of condominium in trade publication without buyer’s consent

PIPEDA Case Summary #2009-002

[Principle 4.3; paragraph 7(3)(h.1) and subsection 2(1)]

Lessons Learned

  • In some contexts, “personal information” can include the purchase price of real estate since it can reveal something of a personal nature about the buyer/individual.
  • It is not enough for personal information to be simply available from a public source (e.g. a municipal/provincial property registry) for an organization to be able to lawfully disclose it without obtaining the individual’s consent:  The information must also have been collected from the publicly available source for the specific purpose of making the disclosure.

Two months after purchasing a condominium, a woman noticed an advertisement for it in a weekly real estate newspaper. The ad showed the condo building photo, the street and unit address, and a large caption from which the actual purchase price could be calculated. The buyer complained that the price she paid was personal information and that she had not authorized its disclosure.  

The Assistant Commissioner agreed that the purchase information is personal and that consent should have been sought before publishing it in this case, even though such information can be publicly available.  

The following is an overview of the investigation and the Assistant Commissioner’s findings.

Summary of Investigation

The complainant entered into an agreement to purchase a condominium.  Two months after the sale, the salesperson placed an advertisement in a weekly real estate publication that showed the number of the condo unit, the building address, a photograph of its exterior, and the caption “Sold for 99.3% of asking price”.  The complainant claims that her consent for this advertisement and the disclosure of her personal information had not been obtained.

The complainant then lodged a complaint against the salesperson with the organization governing the real estate industry in her province.  The organization recognized the salesperson’s actions as being in violation of its profession’s code of ethics and consequently reprimanded him.

The complainant was not satisfied with the resolution and filed a complaint with this Office.  Both the salesperson and the real estate company employing him acknowledged that the disclosure was made in error and without the consent of the complainant.  The company also committed to developing policy and procedure to institute an appropriate degree of oversight and to advise its salespeople accordingly with respect to obtaining the appropriate consent before disclosing client personal information.

Findings

Issued February 20, 2009

Subsection 2(1) defines “personal information” as information about an identifiable individual, but does not include the name, title or business address or telephone number of an employee of an organization.

Application: Principle 4.3 stipulates that the knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where inappropriate.

Paragraph 7(3)(h.1) states that for the purpose of Principle 4.3, and despite the note that accompanies that clause, an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is of information that is publicly available and is specified by the regulations.

In making her determinations, the Assistant Commissioner deliberated as follows:

  • This Office’s case summary # 2008-390 explains how residential appraisal documents, including market value of a property, may constitute personal information in some contexts. Moreover, the Act defines personal information as information about an identifiable individual. In the Assistant Commissioner’s view, in this case the combination of the condominium address and the purchase price paid by the new owner is sufficient information to identify the complainant. 
  • This Office concluded in another case (case summary # 2006-349) that information about property is personal information if it reveals something of a personal nature about an individual. For example, the purchase price in post-sale advertising could reveal personal traits of the complainant, such as the abilities to pay or to bargain.
  • Thus, the purchase price of a property can be considered personal information.
  • The Assistant Commissioner also examined whether the respondent obtained consent from the complainant to disclose her personal information, pursuant to Principle 4.3. Since the complainant and the respondent stated to this Office that consent was not obtained, the facts were not disputed, and the Assistant Commissioner found that Principle 4.3 was contravened.
  • Lastly, the Assistant Commissioner determined that the disclosure of the purchase price in the present case is not allowable under the exclusion from consent provision of paragraph 7(3)(h.1). This provision states that consent need not be sought if the personal information is publicly available. The price paid by the complainant for her property would quite likely be accessible to the public through public property registries.
  • However, this Office interprets paragraph 7(3)(h.1) to apply in situations where the information is actually collected from a publicly available source. In the case at hand, the information would have been collected from purchase agreements that the salesperson was privy to in the course of his duties as sales agent for the seller.

Conclusion 

The Assistant Commissioner concluded that the complaint was well-founded and resolved.

See also

Case Summary # 2008-390

Case Summary # 2006-349

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