Securing Compliance, Protecting Privacy: The PIPEDA Enforcement Evaluation Research Project

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Organization

British Civil Liberties Association (BCCLA)

Published

2006

Summary

This study examines the enforcement mechanisms in PIPEDA vs. alternative models in the provinces of Quebec, Alberta and British Columbia, as well as Australia and New Zealand, and two non-privacy models in Canada regulating human rights and telecommunications.

The research combines literature reviews and interviews with privacy officials, advocates and officers of regulated parties, to analyze the practical effects of different choices in enforcement models. The research highlights which powers have been granted and used, to identify policy and legal mechanisms best enhancing compliance.

The study finds that there is more dissatisfaction than satisfaction with the ombudsman role played by the Office of the Privacy Commissioner under PIPEDA, and that the law needs changing to make enforcement more effective. The OPC has strong investigative powers (and audit and education roles) but cannot issue orders and award damages. The only recourse is through the Federal Court, which is viewed as a considerable barrier to access justice. The author states that the ombuds-model may have been appropriate to achieve consensus among regulated parties when PIPEDA was first enacted. He recognizes OPC’s serious commitment to enhancing enforcement under the existing model. However, the study concludes that, after five years, the OPC requires more tools to move the regulated parties toward more substantial compliance.

Recommendations include several reforms the OPC could implement without amending the law or the ombuds-model. These include:

  1. improved investigation standards, such as using agreed statements of facts, ensuring each party has a full opportunity to respond and that reports sent to each are substantially identical;
  2. additional funding to provide legal assistance, make site visits to review privacy policies and make more information available online and in printed form; and
  3. permanent audit and review processes to measure compliance, with the results being published in the Commissioner’s Annual Report, including identifying non-compliant businesses.

The study also recommends amendments to PIPEDA, concluding that stronger enforcement tools available and used in other privacy jurisdictions will enhance compliance even further while still retaining the dispute resolution focus of the ombuds-model. These new tools include empowering the Commissioner to issue orders that are able to be filed with the Federal Court and made immediately enforceable; allowing the Commissioner to award compensation to complainants and, in egregious cases, to award punitive damages against respondents; allowing representative complaints to the OPC (filed by a third party on behalf of an individual), and allowing complainants to file class action suits in the Federal Court.

This document is available in the following language(s):

English only

OPC Funded Project

This project received funding support through the Office of the Privacy Commissioner of Canada’s Contributions Program. The opinions expressed in the summary and report(s) are those of the authors and do not necessarily reflect those of the Office of the Privacy Commissioner of Canada. Summaries have been provided by the project authors. Please note that the projects appear in their language of origin.

Contact Information

British Columbia Civil Liberties Association
900 Helmcken Street 2nd floor
Vancouver, British Columbia
Canada V6Z 1B3

Website: http://bccla.org/  
Tel: (604)687-2919
Fax: (604) 687-3045

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