I am not a lawyer, but through my work in the real world have some acquaintance with PIPEDA (The Personal Information Protection and Electronic Documents Act). The way I understand this law as it would apply to shenanigans related to the Liberal Party Membership List as reported here is as follows. In joining the Party, a person is providing certain personal information to the party. Furthermore, the mere fact that they allow themselves to appear on the list conveys personal information--that they are a party Member. They are doing this in the expectation that the Party will use the information only for specific purposes (however those purposes have been explicitly or tacitly defined). To use this information for purposes beyond the definition, the Party, or certain third parties given access to the data by the Party, must essentially approach every person on the list and ask permission to use their personal information before going ahead.
So, the way I see it, unless Dion, Dryden, and etc. contacted every Liberal on the rolls and asked if their data could be turned over to the Globe, then they may be in violation of the Act.
Therefore this latest "scandal" may not be just an issue internal to the Liberal Party, and perhaps, not as trivial a matter as I thought.
Now, as I say, I am not a lawyer, so I may be totally wrong on how the legislation would apply to the current situation. Non-profits, political parties among them, are exempted from certain aspects of PIPEDA. For example, The Party can turn over its list to certain third parties--Leadership candidates among them--so that these candidates can solicit Members for support, donations, and the like. But are Leadership candidates in turn allowed to turn over said list to a commercial entity like the Globe and Mail, which then use it for a commercial purpose (doing a poll and publishing the results so as to sell newspapers)? I don't know.
PIPEDA is complicated, and many of the issues it raises have yet to be tested. Furthermore, it is complaints driven, so if no Liberal Party Member raises an alert with the Privacy Commissioner, nothing happens. However, if they do, The Privacy Commissioner can launch an investigation and dole out punishment.
If anyone wants to look at the legislation, the website of the Office of the Privacy Commissioner of Canada can be found here.
I am also not a lawyer, just a lowly law student, but I do think that it was within the rules to give the membership lists to the Globe strictly for the purpose of conducting a poll, since the terms of the confidentiality agreement permit the lists to be used by an outside source if the source signs a confidentiality agreement, which the polling company did.
ReplyDeleteI am not a lawyer either, but it seems to me that, if BigCityLib is correct that PIPEDA applies to the sharing of membership information, I don't know how a confidentiality agreement gets you outside of PIPEDA.
ReplyDeleteIt might keep you within the party's rules, but how you can sign a contract that gets you outside of federal law?
That's like an employment contract that says worker safety rules and the minimum wage don't apply. It won't fly, Wilbur.
Winnipeg liberal,
ReplyDeleteThat's true, so please note the caveats. I can see how this might be a violation; I am not certain it is.
I do like the employment of the question mark in your title at the end of what would otherwise be a ridiculous statement, a la Fox News.
ReplyDeleteIt's an interesting question, but the federal privacy law (PIPEDA) likely doesn't apply in this case. I've written a bit about the reason why at Canadian Privacy Law: PIPEDA and elections or leadership campaigns.
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