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Winter 2004 Edition- January 2004 Volume 4

The New Privacy

The Ottawa Chapter hosted an informative preview of the Personal Information Protection and Electronic Documents Act (" PIPEDA") which came into force in Ontario on January 1, 2004. The meeting took place at the Centurion Conference Centre, and a good number of people braved driving rain and high winds to attend the session.

The speaker was Charles Hofley, partner with Hicks Morley in its Ottawa office. His practice includes arbitrations, collective bargaining, Labour Board representation, wrongful dismissal defence and employer advice. He has extensive experience in grievance arbitration in both private and public sectors and trial experience in the Ontario courts. He is well versed in the use of legal tools to prevent and minimize conflict and liability arising from the employment relationship. Charles has established expertise in advising and representing clients with respect to plant closures, downsizing, restructuring and sale of business implications.

As Charles explained to the group, the Act will apply to personal information that is collected, used, or disclosed in the course of commercial activity. One area which no doubt may be affected by the legislation is the maintenance of online membership directories. The applicability of the PIPEDA to these password-protected sites will depend on the specific content of the directory.

The first question a firm must address is whether the information contained therein falls within the meaning of personal information. The Act defines personal information broadly as meaning "information about an identifiable individual." However, it is not likely to apply to information that is publicly available, for example, names, addresses and phone numbers which can be found in a public telephone directory will probably not be considered 'personal information'. Therefore, it will be the type of information available on the directories that determines the applicability of the PIPEDA. In certain circumstances there may be an argument that what is disclosed in the online directories does not consist of personal information, but rather is limited to what is otherwise publicly available.

If the information collected, used or disclosed is found to be 'personal', the Act requires that two questions be answered to determine whether the PIPEDA applies:

1. Is the collection, the use, or the disclosure directly or indirectly related to an exchange of merchandise or services for consideration?

2. Is the exchange undertaken for the purpose of generating revenue or positive cash flow?

The commercial purpose inquiry set out in the two questions above, does not involve an examination of the purpose of the institution, but an examination of the purpose of the specific exchange. The Act expressly states that "the selling, bartering or leasing of donor, membership or other fundraising lists" is included within the scope of 'commercial activity' and as such these activities would require adherence to the PIPEDA rules.

The applicability of the PIPEDA to online membership directories that are password protected and available as a function of one's membership to an organization will depend upon the specific information that is collected and/ or disclosed. Undoubtedly, the safest approach would be to treat the directory as falling within under the Act and to seek the express informed consent of all those whose names and information will appear in the directory.

Charles Hofley is the featured presenter on Employment Law Update at the IPM Full Day Conference in Ottawa on June 7, 2004.


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