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Privacy Popular, but Eves Dropped the Ball

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In Ontario provincial politics the fall of 2002 is best remembered for the public outcry over rising hydro bills that precipitated Premier Ernie Eves' decision to pull the plug on his plans for a market-based approach for electricity.<>
Garnering far less attention was the Ontario government's near-simultaneous decision to delay the introduction of new privacy legislation. That decision will have a significant negative impact on the privacy protections afforded to millions of Ontarians.

When the federal government drafted its private-sector privacy legislation in the late 1990s, it acknowledged that it was constitutionally prohibited from regulating certain kinds of personal information such as many forms of health data. The law therefore created a window for the provinces to enact their own comprehensive privacy statutes.

The federal law does not take general effect within the provinces until Jan 1, 2004, which provided the provinces with a three-year timeframe to establish their own legislation (it began applying to federally- regulated businesses such as banks and airlines in 2001).

Those provinces that enact privacy legislation that is substantially similar to the federal law will be assured that their law will govern within the province.

While there was initially some doubt as to who would determine whether a provincial law met the substantial similarity test, the federal government put any debate to rest when it released the terms of the test last year.

They state that provincial laws must incorporate the federal law's 10 privacy principles as well as create an independent oversight system and a redress mechanism. The federal government has said it would seek the federal privacy commissioner's views on the matter, but it retains ultimate decision-making authority.

Armed with this information and facing a deadline less than 24 months away, Ontario unveiled draft privacy legislation last February. It dealt with all forms of personal information, most notably personal health information, and took an aggressive pro-privacy approach.

It also generated considerable criticism as business groups warned that it would create disincentives to doing business within the province, while privacy advocates feared that the 127-page draft was overly complex and virtually impossible to understand.

Undeterred by the criticism, the Ontario government began to redraft the legislation, quietly consulting with all stakeholder groups. By late summer, the February draft had been substantially revised and enjoyed the support of virtually all parties involved in the drafting process.

With the 2004 deadline now less than 18 months away, privacy observers expected the law to be introduced in the fall of 2002, since any delay would seriously imperil the ability to pass the legislation before the deadline. As the weeks ticked by, there were frequent rumours that the bill would soon surface. Unfortunately, it never did.

By late December, Ontario Privacy Commissioner Ann Cavoukian released a public letter expressing her disappointment with the government's failure to introduce privacy legislation within the province.

Although the Premier responded that there was still time to introduce privacy legislation, it is clear that with an election looming, the opportunity to beat the January, 2004, deadline has been lost. Privacy advocates have been left to wonder how a government that seemed so intent on responding to public pressure on electricity prices believed that the protection of sensitive private information was not similarly deserving of government attention.

The failure to enact provincial privacy legislation on schedule will be felt. First, while the federal legislation will be directly applicable within Ontario, its coverage is limited to commercial activities, thereby leaving an incomplete privacy law framework that scarcely touches issues such as health privacy.

Second, it ensures that federal privacy commissioner George Radwanski — rather than the Ontario privacy commissioner — will enforce private-sector privacy legislation in the province. While the federal commissioner has been justifiably lauded for his public criticism of government network surveillance plans, video camera monitoring, and a proposed traveler database system, his record on interpreting the federal privacy law is more checkered.

The commissioner took months to publicly disclose any decisions under the law (and then only following a national letter-writing campaign in support of public access to decisions); he has occasionally reversed himself on issues creating some measure of confusion; and he typically has released only abridged summaries of decisions leaving experts to struggle with how to interpret the law. Most importantly, the federal commissioner has chosen to remove the parties' names from virtually all public reports. By rendering this information anonymous, he removes a key incentive for compliance with the law — fear of public censure for failing to abide by the privacy regulations as well as recognition for companies who institute good privacy practices.

Cognizant of the fact that both the use and sharing of electronic personal information continues to grow, strong privacy protection is an issue that regularly draws a favourable response from the public. Given that support, along with an Ontario-specific draft that met with general approval, it is disappointing that the Eves government took a pass on privacy. Come January, 2004, Ontarians may enjoy regulated electricity prices, but those looking for provincial privacy protection will likely be left in the dark.

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