PIPEDA and elections or leadership campaigns

M.J. Murphy (aka BigCityLib) asks whether Liberal Party leadership candidates Dion, Dryden and Brison violated PIPEDA by providing confidential party membership lists to the Globe & Mail, as reported by CTV (BigCityLib Strikes Back: Did Dion, Dryden, and Brison Violate Federal Law?). It's an interesting question, but one that is likely answered in the negative.

Of course, this isn't legal advice to anyone. Rather, it's just a discussion of the issues engaged by this report.

The reason is that PIPEDA likely does not apply to the core activities of political parties. Section 4 sets out where PIPEDA does and does not apply:

Application

4. (1) This Part applies to every organization in respect of personal information that

(a) the organization collects, uses or discloses in the course of commercial activities; or

(b) is about an employee of the organization and that the organization collects, uses or discloses in connection with the operation of a federal work, undertaking or business.

Limit

(2) This Part does not apply to

(a) any government institution to which the Privacy Act applies;

(b) any individual in respect of personal information that the individual collects, uses or discloses for personal or domestic purposes and does not collect, use or disclose for any other purpose; or

(c) any organization in respect of personal information that the organization collects, uses or discloses for journalistic, artistic or literary purposes and does not collect, use or disclose for any other purpose.

It is likely a stretch to suggest that federal politics - all cynicism aside - is a "commercial activity", at least to the extent that it would trigger the federal government's general trade and commerce powers upon which PIPEDA relies for its jurisdiction.

Regarding the "disclosure" to the Globe to conduct an opinion poll, most practitioners in this area would say that it is not technically a disclosure. If the poll was being conducted on behalf of the candidate, the polling organization would be the agent for the candidate. (Unless the most recent finding from the Privacy Commissioner would deem their conduct to be a commercial activity in and of itself.) If the use by the Globe was for journalistic purposes, they're off the hook thanks to 4(2)(c).

This is not to suggest that the candiates are blameless. There's been some suggestion that providing the data to the Globe may have violated the conditions of confidentiality imposed by the Liberal party. If that's the case, there may be other remedies, but they wouldn't be within PIPEDA.