There have been questions about the constitutionality of PIPEDA, Canada’s private sector privacy law, since its inception. Quebec launched a constitutional challenge in 2003, pointing to its longstanding provincial privacy statute and the constitutional limitations on a federal privacy statute. The Quebec challenge has remained dormant for many years, but State Farm Insurance revived the issue in a privacy case in 2010.
The Supreme Court decision seems likely to stoke the fires for a constitutional challenge, particularly given the Privacy Commissioner’s call for stronger enforcement powers. Indeed, the prospect of a challenge may hamper the Commissioner’s enforcement efforts as companies reluctant to comply with Commissioner findings may opt to challenge the validity of the legislation instead.
PIPEDA is not the only digital law placed at risk by the Supreme Court decision. Anti-spam legislation, which is still awaiting final regulations before taking effect, may face similar questions since it too relies heavily on the trade and commerce clause.
The decision also places the spotlight on the constitutional questions that have dogged Bill C-11, the copyright reform bill. Those questions do not arise from the trade and commerce clause, but rather involve similar questions about whether the digital lock rules move too far away from conventional copyright law (a federal power) by encroaching into provincial jurisdiction over property and civil rights.
The government’s own analysis of the bill obtained under the Access to Information Act confirms that the digital lock rules envision potential violations of copyright even when there is no copyright infringement. By removing the link to actual copyright infringement (breach of the digital lock rules may occur without a copyright infringement and without regard for traditional copyright defences), the law ventures into the provincial domain over property and civil rights.
The Supreme Court decision throws a monkey wrench into more than just plans to create a single securities regulator. It may also hamper the development of a single national digital legal strategy. This suggests a need to rethink the digital lock rules, and engage the provinces on digital legal issues sooner rather than later.