Written by Ruth Promislow, Michael Whitt and Katherine Rusk
In a recent speech, the deputy commissioner for the Competition Bureau's deceptive marketing practices group, Josephine Palumbo, advocated for the reform of Canadian law to permit the sharing of information between her office and the federal Office of the Privacy Commissioner (OPC). The current Memorandum of Understanding between the OPC and the Competition Bureau does not cover cooperation as it relates to Canadian federal privacy legislation, and only covers Canada's anti-spam legislation. As a result, the two government entities cannot collaborate on regulation of privacy matters. Ms. Palumbo suggested this was a "lost opportunity" and that it would be particularly useful to share information when the two organizations are targeting the same entity.
This statement by the deputy commissioner follows a flurry of recent activity by the Competition Bureau in connection with privacy issues. In January 2020, the Competition Bureau indicated that it intended to take action when organizations "make false or misleading statements about the type of data they collect, why they collect it, and how they will use, maintain and erase it". Following this stated intention, in May 2020, the Competition Bureau asserted this authority, resulting in an agreement by Facebook to pay a fine of $9 million under the Competition Act in connection with allegations of privacy violations. Shortly thereafter, the Competition Bureau called for increased fines under the Competition Act for privacy violations.
The OPC has also repeatedly called for legislative reform to permit the sharing of information with the Competition Bureau. The OPC advocated for such reform in a November 2017 submission to the Competition Bureau in relation to the discussion paper on 'big data and innovation' and in its 2019-2020 Annual Report to Parliament. In this recent Report, the OPC flagged the incongruity that it is able to collaborate with international partners in circumstances where it cannot do so with Canadian regulators.
Parliament has also considered the issue. In a 2018 report, the Standing Committee on Access to Information, Privacy and Ethics recommended legislative reform to establish a framework to allow the Competition Bureau and the OPC to collaborate where appropriate. Further, in a 2019 discussion paper regarding the modernization of the Personal Information Protection and Electronic Documents Act, the federal government recommended the exploration of mechanisms to provide for increased cooperation and information sharing between the OPC and other enforcement agencies.
In view of these consistent and repeated calls for reform, it is reasonable to expect there will soon be either legislation or other initiatives directed at allowing the Competition Bureau and OPC to cooperate in the regulation of privacy. Such collaboration will likely mean increased resources devoted to, and greater regulatory scrutiny of, privacy and data security matters.
For more information regarding how to contain regulatory and litigation exposure arising from the management of personal information, contact the Bennett Jones Privacy & Data Protection group.