Law Times

PAGE 10 FOCUS June 7, 2010 • Law Times Privacy issues continue to dog Internet giants Despite regulator's concerns, Canadian companies have good record: lawyer BY PAUL BRENT For Law Times and Facebook, you could be forgiven for thinking the com- panies W are based in Ottawa rather than places like silicon startup-friendly California. Such has been the unrelent- ing criticism of Canada's pri- vacy commissioner, who has called out the two companies for consumer privacy lapses and influenced behaviour even while lacking any power beyond moral suasion. This past April, Commission- er Jennifer Stoddart joined with data protection authorities from nine other countries to point their fingers at Google CEO Eric Schmidt. The privacy bureaucrats, who represent more than 375 million people and include hen it comes to call- ing out the privacy missteps of Google those from France, Germany, and Britain, credited Google for its willingness to consider new approaches to data protec- tion but stressed their concern that the company's rapid pace of innovation puts privacy con- cerns in the back seat. "We are increasingly con- cerned that, too often, the privacy rights of the world's citizens are being forgotten as Google rolls out new techno- logical applications," the April 20 letter stated. "We were dis- turbed by your recent rollout of the Google Buzz social net- working application, which betrayed a disappointing disre- gard for fundamental privacy norms and laws. Moreover, this was not the first time you have failed to take adequate account of privacy considerations when launching new services." The letter also cited the launch of Google Street View, which in some cases ran afoul of cultural norms or included facial features without blurring them out. The letter concluded Google isn't the only online company "with a history of introducing services without due regard for the privacy of its users," just per- haps the most prominent. The focus on Google by Canada and other countries isn't coincidental, explains Fazi- la Nurani, a privacy lawyer and president of PrivaTech Consult- ing in Thornhill, Ont. As she points out, Canada's privacy watchdog has gone after Google and Facebook before, despite having no real power over the companies, with an eye to im- proving the actions of other organizations. "She is looking especially at large organizations and sending out the message even without a complaint," Nurani notes. Nurani shares Stoddart's opinion that there's plenty of room for improvement to data I think most mistakes are hap- pening," she says. Canadian privacy experts agree that the breakneck pace of technological innovation at companies like Google is a ma- jor contributor. Another one is that organizations are doing a poor job of communicating about privacy issues with users and consumers, notes Barbara McIsaac, who deals with pri- vacy issues at Borden Ladner Gervais LLP in Ottawa. "The biggest problem as I under- Most Canadian companies are working hard to get their pri- vacy policies right, says Barbara McIsaac. security and privacy issues in industries such as retail, health care, and those that are particu- larly focused on doing business online. "Everyone needs to be concerned about it, particu- larly in the online space where Diamonds are a lawyer's best friend stand it with any kind of new technology or social media that is out there is that people are providing personal informa- tion without any understand- ing of what they are doing." McIsaac attributes this fact to policies that are hard to read and less-than-adequate planning and preparation for privacy issues early in the process. "I have drafted a lot of pri- You don't need to search through mountains of irrelevant decisions in our online services. Select decisions chosen by experts are denoted with a to help you quickly identify the best decisions first. Then you can consider the rest of your search results. Diamond decisions are available in the following Canada Law Book online services: • BestCase • Canadian Employment Law (Ball) • Canadian Patent Reporter online • Criminal Pleadings & Practice (Ewaschuk) • Criminal Spectrum • Dominion Law Reports online • Labour Spectrum For product details and pricing information visit www.canadalawbook.ca Law Report_Diamond (LT 1-2x4).indd 1 www.lawtimesnews.com 4/13/10 3:57:34 PM vacy policies, worked with a lot of clients trying to draft them, and it is very difficult to get that balance between a privacy policy that truly discloses what personal information is going to be collected, how it is going to be used, and at the same time be something that somebody might actually read and under- stand," she says. McIsaac's second point is that organizations should build privacy into new projects from the start. "Companies are more and more starting to realize that before they launch any kind of new initiative, whether it be a technology initiative or a marketing initiative or what- ever the case may be, the best practice or the prudent thing to do is to conduct a privacy assessment first." A privacy assessment in- cludes determining the range of personal information the orga- nization will be collecting; what it will be doing with it; and what disclosures and consents will be necessary for consum- ers. Addressing privacy issues is generally easier to do at the start of the process of launching new products or services and can al- low engineers and other profes- sionals to incorporate them into the design and construction earlier on. While Canada's privacy com- missioner has made the issues of information security front and centre with her targeting of the Internet giants, McIsaac con- tends the track record for Cana- dian companies is in fact pretty good. "We have had our privacy legislation for eight or nine years now [and] we have had a series of very proactive privacy com- missions" both federally and in provinces such as Ontario, Alberta, and British Columbia. "In my experience, most Cana- dian companies are trying to do the right thing. Sometimes, it is not the easiest thing to figure out what you have to say in a privacy policy and what you can and can't do." LT

• Cover
• Civil Needs
• Expedited Justice
• Focus On Internet/E-Commerce Law