An Interview with Dr. Ann Cavoukian, Information and Privacy Commissioner, Ontario, Canada
Dr. Ann Cavoukian, Information and Privacy Commissioner, Ontario, Canada
- When Canada weighed a broad privacy legislation against sectoral legislation, was the decision close? What were the most decisive factors?
Canada’s legislative privacy regime consists of both broad and sectoral privacy legislation.
Broadly, the use of personal information in Canadian commercial activities is regulated by federal legislation under the Personal Information Protection and Electronic Documents Act (PIPEDA), or by provincial legislation that is “substantially similar” to PIPEDA, or by provincial legislation that is “substantially similar” to PIPEDA.
Sectorally, a prime example is the protection of personal health information under Ontario's Personal Health Information Protection Act, 2004 (PHIPA).
Regarding the decisive factors surrounding Parliament's passing of a broad private sector privacy statute, you may know that oversight of PIPEDA falls within the jurisdiction of the Office of the Privacy Commissioner of Canada (OPC). Accordingly, you may wish to focus your contact with the OPC regarding your question. In addition, Industry Canada may have some helpful resources regarding the federal government’s decision to enact PIPEDA. - Do you see the different perceptions and cultural understandings of privacy as something to be addressed through legislation? If not, do you think it should be addressed at all? How?
In an era marked by the widespread use of new information technologies, globalization, and the international flow of personal information, the establishment of global privacy standards is required to effectively protect personal privacy. Fortunately, an international community of data protection commissioners is hard at work contributing to the establishment of a set of global privacy principles. At the annual International Data Protection Commissioners Conference in 2005, Dr. Ann Cavoukian, Information and Privacy Commissioner of Ontario, chaired a Working Group of Data Protection Commissioners that led to the Creation of a Global Privacy Standard. Such a principled but flexible approach can also be seen, for example, in the landmark Privacy by Design (PbD) resolution adopted unanimously, in 2010, by the international Privacy Authorities and Regulators at the International Conference of Data Protection and Privacy Commissioners in Jerusalem.[1]
The resolution recognizes PbD as an “essential component of fundamental privacy protection” – an International Standard, and urges its adoption in regulations and legislation around the world. Governments that employ this internationally recognized standard will be able to both protect privacy and address local and national priorities.[2] - How does the Canadian model implement self-regulation of privacy standards? How is that balanced against legal enforcement of privacy legislation?
In Canada, as elsewhere, private sector privacy regulation recognizes the dual purposes of protecting the individual's right to privacy, on the one hand, and recognizing the commercial need for access to personal information, on the other.[3]
PIPEDA furthers these two purposes by tying a set of flexible, technology-neutral privacy principles to a statutory framework of rules governing the collection, use, and disclosure of personal information.
In particular, Part I of PIPEDA provides the overarching statutory framework, while Schedule I, which was borrowed from the Canadian Standards Association’s Model Code for the Protection of Personal Information, provides flexible, technology-neutral privacy principles. To accomplish the dual purposes that animate PIPEDA and its Schedule, Canada’s Federal Court of Appeal has directed that the interpretation and application of this regulatory framework should be guided by "flexibility, common sense and pragmatism."[4]
Such an approach allows organizations to address their own goals and priorities within a privacy protective framework. Moreover, by incorporating the flexible principles of PbD, organizations can "go beyond mere legal compliance with notice, choice, access, security and enforcement requirements." Instead, they can be empowered to design their own responsive approaches to risk management and privacy-related innovation, within the context of the relevant regulatory framework. This approach allows organizations to develop doubly-enabling, positive-sum solutions that are win/win in nature and appropriate given the size and nature of the organization, the personal information it manages, and the range of risks, opportunities, and solutions available. - Does Canada favor private forms of redress or agency/state enforcement to prevent and remedy privacy violations? In what circumstances is one more effective than the other?
Canadian privacy legislation includes both state enforcement and private forms of redress; neither is necessarily favoured.
For example, under PHIPA, the Attorney General may impose fines of up to $50,000 for individuals and $250,000 for corporations who are found to be in breach of PHIPA. Further, our office has broad powers of investigation and can directly order a custodian to comply with its obligations. An individual affected by a Commissioner’s final PHIPA order may commence a proceeding in the Ontario Superior Court for damages for actual harm suffered.
Another example is under PIPEDA where contravention can result in fines of up to $100,000 depending upon the type and severity of the matter. Further, the federal privacy Commissioner has powers to investigate and report findings with respect to privacy complaints. Following the release of the Commissioner’s report, a complainant may apply to the Federal Court to seek remedies that include damages and an order requiring an organization to correct its practices.
Generally, fines and other penalties imposed on individuals and corporations by the government are effective in deterring certain actions and protecting the public from a variety of harmful practices. On the other hand, a private right of action may be effective when a particular individual is harmed by an individual or corporation and is seeking damages to compensate or redress that particular harm. - What types of privacy violations are the most common? How have these been addressed?
The most common types of privacy violations are inadvertent disclosures or privacy breaches of personal information, including personal health information. In particular, these violations usually stem from the improper retention, transfer and disclosure of personal information.
Privacy breaches are addressed in a variety of ways, depending on the type and amount of information disclosed. For example, under PHIPA, if health information is stolen, lost, or accessed by unauthorized persons, the health information custodian must notify the affected individual at the first reasonable opportunity and should take immediate steps to contain the breach. Further, the Commissioner may order the health information custodian to take corrective action such as requiring the custodian to implement a certain procedure when handling personal health information or conduct privacy training. - What forms of privacy education has Canada pursued? What audiences have been targeted? Which efforts have been the most successful and why?
Canadian institutions and organizations have pursued a wide variety of privacy education initiatives including programs that award professional designations (e.g. IAPP, CAPAPA, University of Toronto Identity, Privacy and Security Initiative, University of Alberta Program).
Our Office has led a wide variety of educational initiatives to spread the word about privacy protection and freedom of information under our Ontario legislation. We have focused on a variety of audiences from the general public to individuals who deal with privacy and access to information issues as part of their daily professional role.
Initiatives include frequent contact between our Information Officers and the public, and dozens of marketing materials geared to providing guidance (e.g. “Circle of Care: Sharing of Personal Health Information for Health-Care purposes”, “What to do When Faced With a Privacy Breach: Guidelines for the Health Sector”). Our Office has developed Educational Resource Guides (Grade 5, Grade 10, Grades 11/12), which have been added to the formal Ontario curriculum to help teachers educate about privacy protection. Commissioner Cavoukian participates in extensive presentations and speeches at numerous conferences and events. As well, representatives from our Office reach out into the community to educate about our offerings and role (hospitals, conference, community events etc.). In addition, to educate Ontarians about privacy protection, the IPC also allots significant resources to many marketing initiatives including a quarterly e-newsletter, video production, and social media outreach. Most recently, we circulated an online tool kit (available via USB as well), to assist new Freedom of Information and Protection of Privacy Co-ordinators in the public sector. Most of our resources are available in English and French.
Without a doubt, the IPC’s most successful educational effort thus far is in the area of PbD, now an international standard. This Ontario-made solution was created by Commissioner Cavoukian who has led the IPC in partnering with global stalwarts such as IBM, Intel, and Nokia to advance Privacy by Design, and to foster innovation in many fields, including biometrics, the Smart Grid and even Targeted Advertising. Privacy by Design knows no boundaries and makes sense for everyone — especially businesses. Not only is it cheaper to build in privacy before a breach occurs, it is also a compelling way to win the trust of clients and build a successful brand. - What [have] proven to be [the main] challenges or obstacles to protecting privacy in Canada?
The most common obstacle to protecting privacy is that key stakeholders hold on to misconceptions about privacy.
Misconception #1 – Privacy is dead or obsolete.
Misconception #2 – Privacy stops us from performing our job.
Misconception #3 – With the massive growth of online social media, you cannot have both widespread connectivity and privacy.
Not only do these misconceptions contradict each other, they are both dead wrong!
Privacy is alive and well and more relevant than ever. Consider, for example, that the same technologies that serve to threaten privacy may also be enlisted to support it. Properly understood, privacy is becoming increasingly critical to achieving success in the new economy. In this environment, PbD offers a principled, flexible, and technology-neutral vehicle for engaging with privacy issues, and for resolving them in ways that support multiple outcomes in a full functionality, positive-sum, win-win scenario.
It does so by ensuring that privacy is built in right up front, directly into the design specifications and architecture of new systems and processes.
PbD seeks to accommodate all legitimate interests and objectives in a positive-sum “win-win” manner, not through a dated, zero-sum approach, where unnecessary trade-offs are made. PbD avoids the pretense of false dichotomies or unnecessary trade-offs, such as privacy vs. security, demonstrating that it is possible to have both. For more on PbD, go to www.privacybydesign.ca
Dr. Ann Cavoukian, Ph.D., Information and Privacy Commissioner, Ontario, Canada
Dr. Ann Cavoukian is recognized as one of the leading privacy experts in the world. Noted for her seminal work on Privacy Enhancing Technologies (PETs) in 1995, her concept of Privacy by Design seeks to proactively embed privacy into the design specifications of information technology and accountable business practices, thereby achieving the strongest protection possible. In October, 2010, regulators from around the world gathered at the annual assembly of International Data Protection and Privacy Commissioners in Jerusalem, Israel, and unanimously passed a landmark Resolution recognizing Privacy by Design as an essential component of fundamental privacy protection. This was followed by the U.S. Federal Trade Commission’s inclusion of Privacy by Design as one of its three recommended practices for protecting online privacy – a major validation of its significance.
An avowed believer in the role that technology can play in the protection of privacy, Dr. Cavoukian’s leadership has seen her office develop a number of tools and procedures to ensure that privacy is strongly protected, not only in Canada, but around the world. She has been involved in numerous international committees focused on privacy, security, technology and business, and endeavours to focus on strengthening consumer confidence and trust in emerging technology applications.
Dr. Cavoukian serves as the Chair of the Identity, Privacy and Security Institute at the University of Toronto, Canada. She is also a member of several Boards including, the European Biometrics Forum, Future of Privacy Forum, RIM Council, and has been conferred a Distinguished Fellow of the Ponemon Institute. Dr. Cavoukian was honoured with the prestigious Kristian Beckman Award in 2011 for her pioneering work on Privacy by Design and privacy protection in modern international environments. In the same year, Dr. Cavoukian was also named by Intelligent Utility Magazine as one of the Top 11 Movers and Shakers for the Global Smart Grid industry, received the SC Canada Privacy Professional of the Year Award and was honoured by the University of Alberta Information Access and Protection of Privacy Program for her positive contribution to the field of privacy. Most recently in November 2011, Dr. Cavoukian was ranked by Women of Influence Inc. as one of the top 25 Women of Influence recognizing her contribution to the Canadian and global economy. This award follows her recognition in 2007 by the Women’s Executive Network as one of the Top 100 Most Powerful Women in Canada.
Notes
[1].Information and Privacy Commissioner/Ontario, Landmark Resolution passed to preserve the Future of Privacy, http://www.ipc.on.ca/images/Resources/2010-10-29-Resolution-e_1.pdf
[2].For a discussion of how governments might employ an PbD approach to privacy regulation, see Commissioner Cavoukian’s White Paper, Privacy by Design in Law, Policy, and Practice available at:
http://www.ipc.on.ca/english/Resources/Discussion-Papers/Discussion-Papers-Summary/?id=1095
[3].See the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (Can.), http://www.canlii.org/en/ca/laws/stat/sc-2000-c-5/latest/sc-2000-c-5.html.
[4].Englander v. Telus Communications Inc., 2004 FCA 387, Locus Para. 38-46.
