Federal Court PIPEDA Reference Could Reshape Privacy Law in Canada

The Federal Court granted CIPPIC leave to intervene in a Reference, FC File No T-1779-18, that could have wide-ranging impact on the scope of protection offered by PIPEDA, Canada's primary federal privacy law. The Reference questions whether core features of the digital economy will continue within PIPEDA's jurisdiction.

PIPEDA, Canada's premiere e-commerce privacy legislation, primarily applies to data processing carried out in the course of 'commercial activity'. The arguments advanced in this Reference could exclude platforms such as Google and Facebook from PIPEDA's protection on the basis that data collection of user-generated activity such as search querying or clicking on social media posts on Facebook does not constitute 'commercial activity'. Yet many e-commerce platforms are explicitly designed to maximize data collection from user-generated activities as the primary core of their commercial enterprise. These platforms regularly offer services at low or no cost as a means of incentivizing user activity on their platform, specifically so the data created by that activity can be collected and monetized. As this business model is endemic throughout the digital economy, the proposed definition of PIPEDA could have far-reaching implications for privacy in Canada. In its proposed intervention, CIPPIC will argue that this outcome ignores the text and purpose of PIPEDA, which has been described as 'consumer protection legislation for the digital age'.

The reference will also examine the degree to which digital platforms constitute 'journalistic activities', as PIPEDA does not apply to data processing conducted solely for journalistic purposes. CIPPIC will argue that, while the application of PIPEDA to platforms can raise challenges for freedom of expression and the press, PIPEDA's journalism exception is not designed nor intended to address these challenges. In their essence, online platforms such as search engines are not journalistic endeavours. Excluding them categorically from PIPEDA through a 'journalism' classification will frustrate the purpose of PIPEDA, a law designed to regulate privacy in the digital age.

Image Source: Learntek, "big-data-analytics", April 23, 2018, Flickr, CC-0 1.0

Tamir Israel, Staff Lawyer, CIPPIC