Privacy Issues - Watch Out! John D.R. Craig ORIMS Professional Development Day March 19, 2013

2 The Issue Privacy is one of the most important developing legal issues Do we still have any Privacy? Are we entitled to expect any Privacy?

The Issue Regulation of Privacy is a mixed bag –Information privacy legislation (PIPEDA) –Statutory privacy tort legislation (not in Ontario) –Emerging common law privacy tort –Human Rights Code (anti-discrimination) 3

The Issue What is Privacy ? –“Right to be left alone” –Private interests: informational, corporeal, territorial, temporal –Reasonableness –Consent 4

The Issue Leading Privacy Issues –Surveillance –Background checks (criminal, credit, etc.) –Drug and alcohol testing –Medical information –Searches –Misuse of /internet/social media –Cross-border transfer of information 5

The Issue Sources of Liability –Direct liability for policies or actions taken –Vicarious liability for the actions of employees 6

7 PIPEDA Information Privacy legislation exists federally and in BC, AB and QB PIPEDA is the federal law applicable to Ontario’s private sector: –“Commercial activities” are regulated: purpose of making a profit –No application to provincially regulated employment per se

8 PIPEDA Key Privacy principles: –Consent –Limiting Collection –Limiting Use, Disclosure, and Retention –Safeguards –Accuracy

9 Enforcing PIPEDA Privacy Commissioner of Canada –Complaint –Investigation –Directives Federal Court –PCC can apply to the Court to convert directive into an order –Trial de novo

PIPEDA Cases in the Federal Court The Federal Court has often been the voice of reason : –Eastmond v. Canadian Pacific Railway (2004) –Turner v. TELUS (2005) –State Farm (2010)

Tort of Invasion of Privacy The Privacy tort has now arrived in Ontario: –Somwar v. McDonald’s Restaurants (2006) –Jones v. Tsige (2012) 11

12 Tort of Invasion of Privacy Implications –A new and additional source of Privacy liability –Applies to provincially regulated employment –High test should provide some comfort

Social Media – The New Frontier Privacy in Social Media – Is there any? A new source of risk that is difficult to regulate and control – examples: –Mocking customers –Criticizing managers –Posting private or confidential information 13

Social Media – The New Frontier Use of Social Media in hiring – beware –Personal information may be irrelevant to hiring decisions –Exposure to potential discrimination claims

15 Best Practices – Managing Risks Implement and enforce policies and practices on: –Respect for Privacy principles in PIPEDA (e.g. Consent, Non-Disclosure, Access) –Personal use of electronic systems –Social media posting –Ethics in dealing with colleagues and customers

16 Best Practices – Managing Risks Be transparent about policies and practices with respect to collection, storage and use of personal information Conduct periodic training on personal information policies and practices

Best Practices – Managing Risks Catalogue the personal information collected and stored on systems (i.e. know what you have) Conduct periodic audits of compliance with Privacy principles 17

18 Best Practices – Managing Risk Keep up to date on developments in Privacy law, emerging Privacy issues, and best practices –Heenan Blaikie sources include: AccessPrivacy.ca HeenanBlaikie.com/en/Expertise/Privacy-and- Information-Management

Conclusion THANK YOU! 19