In the end, B.C. Supreme Court Justice Gary Weatherill upheld a 2022 decision by the B.C. privacy commissioner, ruling in Liberal Party of Canada v. The Complainants, 2024 BCSC 814, that federal political parties should be subject to the province’s privacy law and must seek consent for how they collect, use and disclose the personal information of B.C. voters. The federal Liberal, Conservative and NDP parties are appealing the decision to the B.C. Court of Appeal.
In a report released this week titled The Political Influence Industry in Canada, Vancouver-based digital rights nonprofit OpenMedia said the case is another reminder of the critical need for privacy laws to protect voter information.
“It's a little bit of a niche issue, but it's a really important one, and one that ought to be cleaned up,” OpenMedia executive director Matt Hatfield told Law360 Canada.
“Our concern is both it’s an inappropriate invasion of people’s privacy,” he added. “But, also, with generative AI [artificial intelligence] making progress, we’re likely to see AI that can target people on some of their individual characteristics over the next few years. And I think some party is going to go too far with this and have it massively blow up on them because of this oversight.”
Hatfield said Canada is behind other Western democracies when it comes to the protection of voter information, noting that privacy legislation in much of the country draws a sharp line between the public and private sectors. Political parties and other nonprofit groups in Canada are not technically subject to either the federal Privacy Act, which covers public institutions, or the federal Personal Information Protection and Electronic Documents Act (PIPEDA), which covers the private sector.
Provincially, only privacy legislation in British Columbia and Quebec offers some level of protection for voters in those provinces.
In their arguments in May, lawyers for the three political parties argued, in part, that the Canada Elections Act (CEA), passed more than 20 years ago, was intended by Parliament to be a comprehensive code governing the conduct of federal political parties, including their collection, use and disclosure of personal information. Under the Act, they maintained, the chief electoral officer is the sole regulator considering the interests and concerns of Canadian voters and, in the words of Justice Weatherill, “federal elections would be stymied by the necessity to comply with the level of personal information privacy protection provided for in provincial legislation” such as B.C.’s Personal Information Protection Act (PIPA).
But echoing his statement made following the B.C. Supreme Court decision in May, B.C. information and privacy commissioner Michael Harvey told Law360 Canada that PIPA provides a level of accountability for federal political parties, unlike the Canada Elections Act.
For that reason, and to ensure that British Columbians’ privacy rights are protected in this previously unprotected area, Harvey said his office will seek intervener status when the political parties’ appeal goes before the province’s highest court.
“Our office respects the right of the parties to pursue their right to appeal in this case,” he told Law360 Canada in an email. “However, we would call on them to examine the fundamental principles at issue here and consider what is in the best interest of voters, the parties themselves, and our democracy.”
He noted that Justice Weatherill’s ruling underlined the vital importance of privacy rights in maintaining voters’ trust in the democratic system, especially when technological advances like generative AI are significantly increasing the risk of people’s personal information being misused.
“British Columbians and indeed all Canadians should be able to understand and consent to how their personal information is handled,” added Harvey. “They should also be able to request their own personal information from the organizations that collect it.”
In a statement to Law360 Canada, Ontario’s Office of the Information and Privacy Commissioner (OIPC) said the country’s largest province is also in dire need of explicit privacy protections for voters.
“Political parties in Ontario are not subject to privacy oversight,” said the statement. “This gap in privacy protection for Ontarians is one of the reasons the [O]IPC advocated for a made-in-Ontario private-sector privacy law in response to the Ontario government’s white paper, Modernizing Privacy in Ontario.
“Meaningful legislative reform,” it added, “is particularly critical given the vast availability of Ontarians’ personal information that can be used in combination with new and emerging technologies.”
In a July 30 news release announcing its report, OpenMedia said the increasing amount of personal data collected and processed by political parties has spawned an entire industry in itself — with at least 91 consulting firms involved to a greater or lesser extent in surveying and data projects for political parties.
“Today’s report should shock every Canadian,” Hatfield said in the news release. “Our research uncovered a vast array of consultants and businesses collecting, analyzing and using sensitive information about Canadian voters — all in a near regulatory void.
“They get away with it for just one reason: because they serve federal political parties,” it added.
The report notes that numerous authorities, including the chief electoral officer, federal, provincial and territorial information and privacy commissioners, the House of Commons Standing Committee on Access to Information, Privacy and Ethics and the Senate’s Legal and Constitutional Affairs Committee have all called for political parties to be brought under federal privacy law, but to no effect.
Hatfield said the parties’ own privacy policies, which OpenMedia reviewed earlier this year, also fall short of meeting reasonable standards for privacy protection.
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