My weekly Law Bytes column (freely available hyperlinked version, Toronto Star version) examines last week’s Privacy Commissioner of Canada finding on secondary marketing. The Commissioner ruled that the inclusion of marketing materials in banking statements constitutes "secondary marketing" and that consumers should be entitled to opt-out of receiving it. I argue that the decision is part of a series of recent findings that send a clear message to Canadian business: a commitment to privacy will occasionally mean that longstanding practices must be changed.
Criticism of the finding has centered on two issues. Some fear that consumers will ultimately bear the cost of the decision with higher banking fees, while other experts maintain that scarce privacy resources should be directed toward bigger issues such as identity theft or workplace surveillance.
Canadians can certainly identify with ever-increasing bank fees, however, the cost of privacy compliance is not unique to this case. Privacy compliance invariably involves a cost, yet support for private sector privacy legislation demonstrates that it is a price Canadians are prepared to pay. Moreover, given the competitive banking environment and the fact that several banks already permit consumer opt-outs, it seems unlikely that consumers will shoulder a significant new cost.
Critics that also argue that Canada faces bigger privacy issues than secondary marketing can certainly make a case that identity theft and workplace surveillance are important issues that should not be ignored.
It does not follow, however, that the Commissioner should avoid also highlighting issues such as secondary marketing. The Commissioner is legally obligated to address all complaints filed with her office and therefore must take on cases both big and small.
Even if an investigation would not have been required, the sum of this case is much bigger than its individual parts. The effect for each individual banking customer is limited, yet there is a significant aggregate impact when spread over millions of Canadians. If the Commissioner were to avoid small privacy issues, invasive practices would be left unchecked with everyone bearing part of the burden.