Life, Wine and the End of the Century
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The 1999 National Convention & Tradeshow
Annual Meeting of the Canadian Marketing Association
May 12, 1999
Privacy Commissioner of Canada
(Check against delivery)
This is the second time I've had the privilege of speaking to this group. The first time was in 1992, seven years ago. I was pretty new in this job and just beginning my relationship with the Canadian Marketing Association in general, and with John Gustavson in particular. I can report that, from my point of view at any rate, that relationship has been in every way a satisfying one, marked by candor, respect and high professionalism.
I can say in perfect truth that if all my relationships and dealings, whether in the public or private sectors, had been as agreeable and co-operative as with the CMA and with John, my job would have been a whole lot easier.
Even in 1992, when the issue of privacy rights had not achieved anything like the profile prominence it claims today, the CMA had already shown an unusual and highly commendable sensitivity to the topic.
You already had in place a good code of ethics, as well as some concrete practices intended to reflect preferences of potential clients. Since then, you've done much, much more.
I had occasion before coming here to re-read my remarks to you on that 1992 occasion. Naturally, I was free with my advice, but gratified to note that a good deal of that advice was accepted and acted upon. In some respects, you went well beyond my own suggestions.
Not only did you put in place a workable opt-out system, which introduced and recognized the principle of consumer consent, but you have also undertaken to disclose the source of your list entries upon request. These were important steps along the way to this present position.
Then you came up with a privacy code, a pretty good one I might add, to supplement your ethics code. And finally the CMA played a key role in the creation of the Canadian Standards Association Code, and thus embraced the proposition of consumer consent in the collection of personal information as well. Beyond that, keeping pace with the rise of the Internet, you have brought in additional measures to protect consumers on-line, particularly children.
All of this comprises a very creditable record. I know of no better one in the private sector. It was done, moreover, without a lot of prodding by people such as myself. In fact, my CMA file back at the office is comprised mainly of letters complimenting CMA on its latest initiative.
I can't say that about too many private sector entities, or federal government entities either for that matter. This is real and enlightened leadership.
Faced with such a progressive record, therefore, I can do no less than offer my congratulations to you, the CMA members, to your board, and to John Gustavson. I promise on that account, to be very sparing with any advice. If I can paraphrase Shakespeare, I come not to hassle Gustavson but to praise him, and all his colleagues.
You have proved a point which I have been trying to make ever since I took this job, which is that self-interest and the public interest not only are not irreconcilable, but simply make for good business when taken into account together.
Now, today, we are faced with a new situation, with the arrival in Parliament of Bill C-54, whose intent broadly speaking is to establish legal rights for the consumer in the collection, use and disclosure of personal information in the commercial world.
It may be stretching to the point to say this would not have happened without the CMA, but there's no doubt that your support for the concept of statutory standards was immensely influential. The CMA as far as I know, was the first major industrial sector to make a public statement calling for this action, and I cannot think of any that could be more important. Your statement in 1995 was followed within a year by a commitment from the federal government to take action, and we are seeing the result.
It's interesting to look back and see how my own thinking and that of John and his colleagues was moving on parallel tracks.
One vital point on which we agreed was the notion of a level playing ground, what's fair for one should be fair for all. It was clear that voluntary observance could not be relied upon, and it certainly would have been wrong to penalize companies who conferred a competitive advantage to others who were not prepared to accept the obligations that go with responsible conduct in today's commercial environment.
There were other factors at work as well of course, the government's concern to build consumer confidence in the emerging world of electronic commerce, the need to stay abreast of the European Community's data protection laws, and the possible restrictions on data exchanges with jurisdictions not having adequate laws of their own.
But most of all, it seems to me, the notion of establishing legal information rights in the private sector was an idea whose time had certainly come.
What this Bill, C-54, really represents is a concrete expression of the concept that the new age of enterprise into which we are moving is one in which the notion of true partnership between consumers on the one side and producers and marketers on the other will become predominant. Each has something the other wants and needs, and for those exchanges to occur easily and fruitfully, confidence and trust based upon genuine respect will be indispensable.
That is, after all, what privacy is really all about both in the world of business, of government, and in personal relationships. If you really want to measure how civilized is the society you inhabit, measure first the degree to which its citizens at any level accord each other a generous measure of respect in terms of autonomy, dignity and privacy. You will find, believe me, a striking correlation.
I noted in John's evidence to the Commons Committee that he thought the CSA Code upon which C-54 is founded is a "delicate compromise". I agree with that description. Some critics think the bill is too strong and others that it's too weak.
A privacy purist, for example, would wish for a more rigorous regime concerning initial collection of personal information than the one provided. On the other hand, we are dealing with long-established businesses, with many thousands of employees serving a vast consuming public, the real world, if you like, and we must not impose conditions which might create an upheaval, or inflict costs which in the end would have to be paid by the consumer. Such an outcome would simply defeat the purpose of the bill, serving no-one. No-one ever cured the patient by draining away the lifeblood. Personally, I accept the compromise. I think it's workable, and if accepted with goodwill cannot fail to produce enhanced respect for consumer rights and greater trust in the marketplace.
I note also in the CMA brief some concern about ambiguities in C-54. You have mentioned the need for a more precise definition of what constitutes information in the public domain. I would add that some further thought be given to more precise definition of the term commercial activity. So yes, there are some ambiguities that need to be clarified.
But, let us remember we are in this for the long haul. To begin with, there is a minimum period of one year to adjust systems before the bill would become law, and in some cases three more years after that.
I noted Mr. Westerholme's concerns about the knotty problem of directory lists and subscriber consent.
Well, in the phrase made famous by Lyndon Johnson, "Come let us reason together, perhaps we can find a good compromise". At any rate, we'll all have another shot at these topics when it comes to writing regulations.
Above all, we all must approach this issue with a bit of patience. The government is showing some courage here in trying to fashion a law that breathes life and meaning into the concept of individual and collective privacy rights in the extraordinarily complex world of commerce.
As a commissioner whose office would be endowed with a complaint investigation and audit authority, I certainly would approach this issue carefully and patiently, relying on a maximum of persuasion, conciliation and education, and a minimum of enforcement. It is one reason I am very happy the government resisted pressures to confer an order power on the commissioner. On our part, we are forced to think creatively and search for reasonable solutions to frequently complicated and many sided problems. For beginners, it is a strong inducement to avoid throwing everything into the hands of corporate lawyers and not concern yourselves with the underlying issue, which is the promotion of a healthy and open relationship with the public.
Some people have complained about the Commissioner having this power. I put it to you: how much credibility would any law have if it lacked some independent oversight?
Bill C-54 in its essentials after all, is nothing more than the C.S.A. code, developed by business itself, with an Ombudsman attached.
In my view, it needs no more, but it certainly could not do with less.
So what does it mean to you? Let me add a further word about audit and compliance. No-one expects overnight miracles. Adjustments will take time. What should be reasonably expected is a recognition of the obligation to meet the spirit as well as the letter of the CSA code and steady and measurable progress toward that objective.
Some of you may shiver at the mention of the word audit, anticipating armies of snoops plowing through your files and being generally a disruptive nuisance. Well, let me tell you something. There are about a million businesses in Canada. There are 40 people in my office, about a dozen of whom are involved in compliance work, as opposed to straightforward complaint investigation. Some army! Some Snoops!
No, my friends. We're not policemen. We're ombudsmen and ombudswomen.
But, we're not wimps, either. Call us mighty mice. That would fit nicely.
The fact is, even though I anticipate some staff increment, my office could never muster the kind of human resources for anything but the most highly prioritized approach to system audits. Nor, do I think such an intrusive approach will be necessary. John Gustavson told the Committee that he believes an approach that is largely based on self-regulation is best. I heartily endorse that sentiment. All laws, good ones anyway, depend upon self-regulation. No policeman sits beside you when you climb into your car to drive to work every morning, although there are a multitude of laws which apply to that everyday act. But, you comply.
Anyway, or I hope so, because you accept the general social benefit which animates those laws. I hope, as the responsible businessmen and women you have so far proved yourselves to be, you will see Bill C-54 in the same light. In any case, when it comes to complaints we're the last link with in the chain, so this will only work with the maximum of dialogue, and the minimum of dictation.
And now, I have a request to make. We need your help, please put down all the questions that arise, pass them on to John. At some point in the near future, we will need to get together to discuss the new situation in which we find ourselves. As Churchill said, "this is not the end, or the beginning of the end, but the end of the beginning". A familiar phrase, I know, but very apt.
I've said on other occasions that perhaps the most important new mandate in this Bill is the one which empowers the Commissioner to conduct educational activities. I intend, and I hope my successors will do likewise, to make serious use of this authority. I believe that ignorance is the largest problem we have, consumers who do not know enough, and businesses not attuned to think about the issues of consumer respect. Doing this well means I need to know a lot more about the processes and problems of the commercial universe. So come, let us learn together.
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