Law Times

Page 12 June 8, 2015 • Law Times www.lawtimesnews.com shortly after its November 2013 launch after receiving what it called an "unprecedented" 170 complaints. Since then, the program has also prompted an application to the Canadian Radio-television and Telecommunications Commission as well as a $750-million class action by Bell customers alleg- ing privacy breaches. The program worked by tracking cellphone users' net- work and Internet usage to build customer profiles and charging advertisers to deliver tailored ads based on their preferences. Although users could opt out, the privacy commissioner's report, released on April 7, concluded opt- in consent was necessary thanks in part to the sensitivity of the personal information collected and used in the opera- tion of the program. Bell has now deleted all of the customer profiles associated with the program but has vowed to res- urrect it using an opt-in approach. Chantal Bernier, counsel to the Ottawa office of Den- tons Canada LLP, says the privacy commissioner's report puts f lesh on the bones of the federal regulator's 2012 policy position on online behavioural advertising. "To me, the report is significant because it's the first real definition of what is allowed in terms of online behavioural advertising. The privacy commissioner has already issued guidelines, but this is a practical application that gives some boundaries," says Bernier, who had previously served as Canada's interim privacy commissioner. "I believe there is room to establish a fair relationship between organizations and consumers in terms of behav- ioural advertising and the report leaves room for the ac- commodation of that fair relationship." The report confirmed Bell's use of browsing data to de- liver targeted ads was an "appropriate" use of personal in- formation under the Personal Information Protection and Electronic Documents Act. Shaun Brown, a partner with Ottawa firm nNovation LLP, says he was particularly interested in the report's find- ings about the sensitivity of the information used by the program since the privacy commissioner's concerns went beyond the types of information, such as health matters, typically thought to be inherently sensitive. "It was not obvious to any of us that the information Bell was using was sensitive," says Brown. However, the privacy commissioner's report said the na- ture and breadth of Bell's services gave the company access to vast amounts of information about its users and their phone, TV, and Internet use. "Under the RAP, Bell can use this information to infer a wide range of both general and specific interests. The com- bination of this information with the extensive account/ demographic information (e.g., age range, gender, average revenue per user, preferred language, and postal code) used by Bell for the RAP will result in highly detailed and rich multi-dimensional profiles that, in our view, individuals are likely to consider quite sensitive," the report concluded. "It creates a bit of a line in the sand about what is and isn't sensitive but it also raises new questions about what else could be regarded as sensitive," says Brown. The report also suggested consumers might have higher privacy expectations for Bell compared with other free ser- vices that employ targeted advertising, such as Facebook, because of the fees they're already paying to the company. Bernier says the distinction ref lects the consumers' increas- ing awareness when it comes to behavioural advertising. "Where access to a service is free and would not survive except for the delivery of ads, I think the expectation is that there will be some targeted ads," says Bernier. "When the ads are an additional revenue stream, the expectation is lower. Not only is awareness increasing, but people are acting upon it much more than before. They will disable an app or walk away from a web site they feel is overly intrusive." Indeed, Wally Hill, chairman of the Digital Adver- tising Alliance of Canada, a self-regulatory grouping of online advertisers, says about five per cent of the visitors to its web site each month are there to opt out of behav- ioural advertising programs run by its members. In the 18 months since its formation, 53 companies have signed onto the alliance's code, although Bell Canada isn't one of them. Hill says the privacy commissioner's report contained no surprises for his group. "We constructed our program in consultation with the OPC about its policy and guidelines," he says. "If anything, I think the decision reinforces the impor- tance of self-regulation and the principle of not collecting sensitive information." Geoffrey White, who acts as external counsel to the Pub- lic Interest Advocacy Centre and the Consumers' Associa- tion of Canada in their complaint to the CRTC about the Bell program, also welcomes the privacy commissioner's re- port. "They came to the conclusion that Bell's approach was wrong and they should have done this on an opt-in basis, so I think on privacy, that was a good decision," he says. However, White hopes the CRTC will go even further than the privacy commissioner since the two organizations he represents have asked the commission to find Bell's col- lection of data for the purposes of behavioural advertising actually breached the Telecommunications Act. He hopes Bell's effective termination of the program won't prevent the CRTC from ruling on it. "The CRTC could turn around and say the issue is moot because the program no longer ex- ists, but we would like them to pronounce on the lawfulness of what Bell was doing," he says. After the release of the privacy commissioner's report, a group of Bell Mobility and Virgin Mobile customers added another wrinkle to the story by launching a class action against Bell Canada. The lawsuit claims $750 mil- lion in damages for alleged privacy breaches related to the program. "The Relevant Ads Program was a misguided attempt by a Canadian telecommunications company to generate advertising revenue. If allowed to proceed, it con- stitutes a threat to the core privacy rights of all Canadians," said a statement from Ted Charney of Charney Lawyers, one of the law firms that filed the claim. None of the allega- tions has been proven in court. "Through this class action, the plaintiff seeks to hold Bell accountable and stop other providers from sell- ing customers' personal information without informed consent," added Charney's co-counsel, David Robins of Sutts Strosberg LLP. LT FOCUS 2015 ONTARIO LAWYER'S PHONE BOOK With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. 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