We live in a time when democratic values are under threat.
Posted at 1:00 p.m.
Digital technologies, while providing many benefits, contribute significantly to this threat. They facilitate misinformation and sometimes even violence. They have created surveillance capitalism, which maximizes corporate profit at the expense of respect for fundamental values, including respect for privacy.
To counter these threats, democracies must adopt robust measures based on their values, not laws that claim to protect citizens while allowing the conditions that have led to the current digital Wild West to continue.
The federal Parliament has begun its study of a new commercial privacy law, Bill C-27. This bill contains some interesting advances over its predecessor, Bill C-11, which died on the order paper. However, it is far too timid to effectively protect Canadians, partly because of its provisions on penalties and the enforcement regime.
Fundamental right
During its study, Parliament will have to decide whether the right to privacy should be formally recognized as a fundamental human right. This should go without saying, since Canada is a party to several international instruments that stipulate this.
Bill C-27 takes steps in this direction, proposing a preamble that would encourage tribunals and courts to interpret the law with the understanding that privacy “is essential to the autonomy and dignity of persons and the full enjoyment of fundamental rights and freedoms”. But privacy per se would not be recognized as a fundamental right. This risks diminishing the relative weight of respect for privacy, compared to commercial interests, when the courts will have to judge the legality of intrusive practices.
Above all, it should be emphasized that despite the preamble, no financial sanction could be imposed on companies that process the personal data of citizens without regard to the fact that respect for privacy is essential to the enjoyment of fundamental rights and freedoms.
Devoid of sanctions, the preamble would therefore only be an illusion. When the government says that its bill would enact the highest sanctions in the G7, that is in fact a publicity slogan and not reality. There would indeed be penalties for certain offences, but none for breaches of provisions that protect privacy in its very essence.
With this bill in its current form, Canada would therefore fall short of what should be its ambition: to protect its fundamental values in a digital economy which, even if it can serve the public interest – for example, in the fields of health and the environment – has demonstrated that it can also undermine the values of our democracy.
The bill would also preserve Wild West conditions by allowing companies to define, without major restrictions, the purposes for which they can use personal data.
An important limitation appears in the law: the purposes must be acceptable to a reasonable person. But again, violating this limit does not result in penalties!
That said, Bill C-27 contains improvements over its predecessor. For example, it recognizes that the protection of privacy can only be based on the principle of consent. It takes certain steps in favor of a right to reputation. It aims to better protect children.
Canada urgently needs to update its privacy laws, including the private sector legislation currently under review. In this context and despite its flaws, Bill C-27 is an acceptable starting point. However, some amendments will be absolutely necessary to ensure that our fundamental values are truly protected.