FCA hands privacy victory to the "little guy"

Sorry for the light (read: non-existent) blogging over the last few days. I've finally gotten to an internet connection ....

Mathew Englander e-mailed me the other day to say that the Federal Court has rendered their decision in his fight against Telus. I haven't read the full reasons, which should be available here soon, but all reports suggest that Telus did not persuade the Federal Court of Appeal to uphold the finding of the Privacy Commissioner and the Federal Court, Trial Division. I haven't found any free coverage online, but here is an extract of an article from the Calgary Herald.

Little guy wins privacy fight against giant Telus.

Canwest News Service
Saturday, November 20, 2004
Byline: Sarah Staples

In a victory for the little guy, a federal appeals tribunal has ruled unanimously that Telus Communications Inc. must go to greater lengths to get its customers' approval before reselling their personal information to telemarketers and others.

``There is no evidence that Telus made any `effort,' let alone a `reasonable' one . . . to ensure that its first-time customers are advised of the secondary purposes (of their personal information) at the time of collection,'' wrote Justice Decary on behalf of his colleagues in the decision released this week.

The case is the result of a protracted battle by Mathew Englander, a lawyer and Vancouver resident, with the phone company since 2001.

Englander argued Telus breaks new federal privacy rules by not informing customers when they sign up for service that it repackages telephone directory listings into CD-ROMs and machine-readable lists and sells them to telemarketers, charities and political parties.

Minutes after the Personal Information Protection and Electronic Documents Act (PIPEDA) was enacted on Jan. 1, 2001, Englander became the first Canadian to lodge a formal complaint to the federal privacy commissioner under the new law.

His arguments were rejected, first by the commissioner and later by a Federal Court judge in a ruling last June. But the Federal Court of Appeals reversed those earlier decisions this week, saying Telus didn't go far enough to make Englander understand his privacy rights.

Telus has been ordered to reimburse Englander the nearly $12,000 he paid in costs after losing the earlier Federal Court decision.

Experts following Englander v. Telus said the ruling sets positive early precedents, defining the legal obligations of business at a time when consumers' expectation of privacy is under siege.

PIPEDA theoretically gives Canadians the right to scrutinize innumerable bits of data collected about them by customer service reps, squirreled into computerized cash registers, and revealed to creditors, doctors and employers. It also warns companies to seek permission before using those details. But the law frames the issues broadly, leaving it to the courts to resolve what crucial notions, such as ``informed consent,'' will mean in practice.

``There are huge costs to industry in attempting to inform the public. Nevertheless, we've moved so far into an age of technology that people don't understand what they're agreeing to,'' said Stephanie Perrin, a consultant and former federal civil servant who was one of the authors of PIPEDA.

``This gives us a first interpretation of what a person can reasonably be expected to understand.''

Englander called the ruling ``an interpretation such that people can make their own decisions about how their information will be used.

``That's what privacy is about,'' he said in a telephone interview. ``It's not only keeping things secret, it's giving individuals the right to decide what stays confidential and what does not.''

Englander's win is a partial victory: the appeals court denied his attempt to stop Telus from charging customers $2 a month for unlisted service a fee that adds $5.96 million annually to the company's coffers, from roughly 250,000 unlisted telephone numbers in Alberta and B.C., according to affidavits.

The telco now has 60 days to offer suggestions for revamping its policies to bring them into compliance with the privacy law. Any changes negotiated with the federal appeals tribunal will be incorporated into their final written judgment, to be issued at an unspecified later date.

Drew McArthur, VP of corporate affairs and privacy officer for Telus, hinted his firm will argue any court-ordered changes should apply only to new customers, and only involve ``the scripting for new customers when they call in for service,'' as opposed to more elaborate and expensive retraining for employees.

The spokesman said phone companies across Canada may be affected, and added Telus is considering its options, including appealing all or some parts of the decision to the Supreme Court of Canada.

One potential hot potato for the highest court is a question of jurisdiction: the appeals tribunal apparently granted federal judges ``overlapping jurisdiction'' to rule on PIPEDA cases, whereas Telus argued any decision on fees should be made exclusively by its regulator, the CRTC.

Also, ironically, the tribunal denied Canada's privacy commissioner deference in cases that come before the courts in future, arguing that to do so would have given privacy advocates an unfair advantage over business interests.

``I think it's now further education of how the court views the balance of the privacy rights of individual versus the needs of businesses,'' said McArthur.

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