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September 29, 2021

The following is an op-ed by Privacy Commissioner Daniel Therrien calling on the new parliament to adopt modern, rights-based privacy laws that reflect Canadian values and support responsible innovation. Versions of this op-ed were published by two newspapers.

Building Back Better Requires Strong, Effective Regulation of Digital World

Daniel Therrien, Privacy Commissioner of Canada

Canada has elected a new Parliament and among its central tasks will be to adopt modern, effective laws that enable responsible innovation and economic growth while protecting the rights and values of Canadians.

The previous Parliament saw a bill (C-11) that sought to create economic growth by providing businesses of the 4th industrial revolution more flexibility and certainty in the extraction of value from personal data. This legislation would not have created the trust required for a sustainable digital economy. To the contrary, I and other experts warned it would have been a step back both for consumer protection and economic growth.

We have heard some voices in the Canadian business community decry that privacy protection is an impediment to innovation. That is not the experience of many leading countries in the digital sphere, where strong laws were adopted to protect the rights of citizens. Germany and South Korea are ahead of Canada in terms of innovation, because the trust inspired by such laws is a necessary component in building a robust digital economy.  Economic partners like the European Union, the United Kingdom and Australia have also adopted similar laws.

We have heard other voices among Canada’s business leaders.  Jim Balsillie, Chair of the Council of Canadian Innovators, understands that in the modern digital economy, trust depends on the protection of rights. Trust has been eroded by multiple breaches of personal information and other violations of privacy, notably the Facebook/Cambridge Analytica scandal. Canadians want to participate in the digital economy but they want to do it safely.

As Balsillie puts it, “proper regulation”, which he says should codify the principle that privacy is a fundamental human right, “would make the market more competitive and dynamic.” He also says that the view that regulation will impede innovation is a “manufactured claim straight out of the Silicon Valley pitch book.” He adds: “We are told that Bill C-11 is ‘a balancing act between privacy and innovation’. Yet those objectives are mutually reinforcing.”

There is no doubt that the modern economy depends and will increasingly depend on the value of data. The pandemic has shown that digital technologies can serve the public interest. So indeed, in some respects, laws need to be modernized to provide more flexibility in the use of personal information, even without consent, for legitimate business interests. But this should be done within a rights-based framework that recognizes the fundamental right to privacy.

What is needed is not more self-regulation, providing additional flexibility to companies that have not always acted responsibly, but rather true regulation, meaning objective and knowable standards adopted democratically, enforced by democratically appointed and properly empowered institutions like the Office of the Privacy Commissioner.

Some industry representatives are concerned that a rights-based legislation might be overly prescriptive, compared to the principles-based and flexible law we now have. In reality, a rights-based framework would be equally flexible and adaptable to new technologies and business models.

Canada’s federal Parliament should follow the lead of its two most populous provinces with the largest economies, Ontario and Quebec, who have made proposals towards responsible digital innovation within a legal framework that recognizes privacy as a fundamental human right. While these initiatives are excellent, they do not absolve the federal government from the responsibility to ensure all Canadians are protected in that manner. Federal legislation that would achieve this goal would reassure citizens that they would receive similar protections throughout the country. It would also benefit commercial organizations by setting interoperable norms, reducing compliance costs and increasing competitiveness.

As a society, we must project our values into the laws that regulate the digital space. Our citizens expect nothing less from their public institutions. It is on this condition that confidence in the digital economy, damaged by numerous scandals, will return.

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