Wednesday, February 09, 2005

Pressure builds to name privacy-law offenders

Up to now, one of the loudest advocates of having the Privacy Commissioner "name names" has been Michael Geist (see Geist: Revise privacy law to expose offenders, block snoops, Article: Weak enforcement undermines privacy laws). Two additional voices have been added to the chorus, according to this article in the The Toronto Star: - Pressure builds to name privacy-law offenders:

"Canadians had high expectations of a new privacy act that came into force on Jan. 1, 2004, designed to safeguard personal information in the private sector.

But the high hopes have not been fulfilled, according to two recent critical reports.

The Personal Information Protection and Electronic Documents Act (PIPEDA) "has not been kind to consumers," says the Public Interest Advocacy Centre.


People who bring a complaint to the privacy commissioner are free to make the full findings public.

But few do.


Similar arguments are made by Chris Berzins, a lawyer with the Ontario labour ministry, in an article published in the Canadian Journal of Law and Technology.

"The all but categorical refusal to reveal the names of complaint respondents," he says, "has a number of unfortunate results."

  • It greatly undercuts the instructive value that complaint investigations might have.
  • It deprives companies of the recognition they deserve when they comply with the law.
  • It unjustly rewards companies that flout the law.
  • It penalizes consumers who are unable to make informed privacy decisions.
  • It prevents the market from rewarding or penalizing companies based on the public's awareness of privacy practices.
  • It makes it difficult to assess the effectiveness of the commissioner's office in promoting compliance.


I am of two minds on this issue. I have acted for a number of companies that have been complained about. In most cases, the matters complained about are relatively minor and the situation that gave rise to the complaints were inadvertent mistakes. In at least one case, they resolved the matter long before complaint ever went to the Commissioner, leaving us scratching our heads as to why they decided to proceed in that manner. It would be unfair to penalize companies acting in good faith that make an honest mistake, fix it and move on. But in cases where the consequences of the violation is significant or was a result of not being concerned about customer privacy, naming names may provide a wake-up call.

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