Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Associate Publisher ...... Gail J. Cohen Editor ............ Gretchen Drummie Associate Editor ......... Robert Todd Copy Editor ............ Matt LaForge CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator .. Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta . . . . . . . . . . . . . . . . . . . . . . . . . Rose Noonan Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2008 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter "I don't know who is sicker? The guy buying it or the guy selling it . . . I don't know how fascinated these people would be if they came face to face with any of these guys in a dark alley or if a family member was killed by one of them." — Ray King, whose son was murdered by Clifford Olson. killer Clifford Olson somehow wound up for sale on a creepy U.S.-based web- site called murderauction.com. The site is one of a bunch now that S significantly in the past year, both for companies that collect and store personal information about their customers, and want to pro- tect it when access is provided to service providers, and for their service providers, who are be- coming increasingly concerned about their liability exposure. The sources of such potential liability can generally be grouped under (a) fines or penalties under applicable privacy laws; (b) notifi- cation costs and related costs that may need to be incurred to notify and mitigate the risks for customers whose personal information may have been compromised; and (c) lawsuits that might be initiated. Under Canada's Personal In- formation Protection and Elec- tronic Documents Act, fines of up to $100,000 may be imposed for knowing contravention of certain specific provisions or where some- one obstructs the commissioner or the commissioner's delegate in the investigation of a com- plaint or in conducting an audit. The court may, in addition to any other remedies it may give, (a) or- der an organization to correct its C oncern regarding poten- tial liability for privacy breaches has escalated ick is an understatement. Ray King was talking about the reve- lation that personal items of serial peddle "murderabilia," a.k.a. collectible items from infamous criminals, includ- ing things like autographed T-shirts, hair and nail clippings, and paintings perpetrated by the monsters. AUGUST 11-18, 2008 / LAW TIMES 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Law Times Inc. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Helen Steenkamer at: hsteenkamer@clbmedia.ca or Tel: 905-713-4376 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbmedia.ca, Kimberlee Pascoe at 905- 713-4342 kpascoe@clbmedia.ca, or Kathy Liotta at 905-713- 4340 kliotta@clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca or Rose Noonan at 905-726-5444 rnoonan@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Crack down on 'murderabilia' The "memorabilia" in this case includ- ed photos of Olson in prison, legal docu- ments, newspaper clippings, and letters. Starting bids were between $1 to $7. This is the personal stuff of a 68-year- old horror show who's serving a life sentence for slaying 11 kids and teens in British Columbia from 1980 to 1981. Who are the repellent freaks, sorry, "se- rialphiles," buying this crap? More importantly, one assumes Ol- person to The Canadian Press. To his credit, Public Safety Minister Stockwell Day responded by asking the corrections commissioner to investigate. And, he said the federal government is considering legislation that would prevent inmates from sending out personal things to people that could end up being sold. "I have asked for all legal measures to be son didn't bake a cake and send his effects out that way with a visitor, nor did the items tunnel over the wall. The government can't police the sale of inmates' articles if they are in hands outside of the system, but they are sup- posed to be able to control the release of personal items like artwork or letters from those in custody, said a spokes- considered so that we can end this unac- ceptable re-victimization," Day told CP in an e-mail. "If that means legislation, then that is the direction that I will consider." Day said the legislation could be in- corporated in a prison reform bill he plans to reveal soon, reported CP. "Under current legislation, it is dif- ficult to limit all materials an inmate may send to family and others outside the jail. There may also be materials ac- quired prior to a criminals' incarceration in the hands of the public," said Day. "Strengthening the rights of victims will also be addressed as part of the prisons reform we are currently working on." "You have to wonder what's next," Gary Rosenfeldt, whose teenage step- son was slain by Olson, asked on CTV's Canada AM. "Is he going to have the hammer that he used to smash our son's head in?" It's sad but necessary to plug any holes that have opened due to the mar- riage of new technology and shady en- trepreneurs, so Day's idea for legislation to curtail inmates is a fine one. Meanwhile, here's the good news: Before Olson's items were pulled from the site after publicity, there were no bidders. — Gretchen Drummie Privacy-related class actions come to Canada Bits and practices in order to comply, (b) order an organization to publish a notice of any action taken or proposed to be taken to correct its practices, and (c) award damages to the complainant, including damages for any humiliation that the complainant has suffered. Where personal information consists of health information then legislation specific to person- al health information is another source of potential liability. For example, under Ontario's Bytes By Alan Gahtan has been prosecuted or convicted. Also, the privacy commissioner Personal Health Information Pro- tection Act, a person is guilty of an offence if the person wilfully collects, uses, or discloses personal health information in contraven- tion of the act or its regulations. Fines upon conviction can range up to $50,000 against a natural person, or $250,000 against cor- porate entities. If a corporation commits an offence under the act, every officer, member, employee, or other agent of the corporation who authorized the offence, or who had the authority to prevent the offence from being commit- ted, but knowingly refrained from doing so, is a party to and guilty of the offence and is liable on convic- tion to the penalty for the offence, whether or not the corporation may, after conducting a review, make various types of orders. Once any order has become final, or where a person has been convicted of an offence, a person affected by the order or the conduct that gave rise to the offence may commence a proceeding in the Superior Court of Justice for damages for actual harm that the person has suffered as a result of a contravention of the act or its regulations. To date, the costs of notifica- tion (and of credit-monitoring services that might be provided where information that could lead to identify theft was lost) has been the biggest concern from a practi- cal perspective. The risk in Canada of damages and class action law- suits for privacy breaches has been mostly theoretical so far. However, two proposed class action lawsuits filed in June by the Merchant Law Group may change that. www.lawtimesnews.com against Daimler Financial Ser- vices, several affiliated companies, and United Parcel Service, alleg- ing responsibility for the loss of personal information, including certain financial information, concerning customers. The claim alleges that a tape containing such personal information was lost in transit by UPS earlier in the year but that the affected customers were not notified for several weeks. The claim alleges negligence for the manner in which the informa- tion was transferred or stored. Merchant Law Group also filed a class action lawsuit against Agri- culture Canada over a stolen lap- top that contained personal and financial information (allegedly including social insurance num- bers, bank account information, and similar data) about 32,000 Canadian farmers who had ap- plied for cash advances through Agriculture Canada's Advance Payment Program administered by the Canadian Canola Grow- ers Association. It allegedly took more than two months following the theft for Agriculture Canada to send out letters notifying farm- ers of their potential exposure. These developments re-empha- The first was filed in Regina size the need for companies to have privacy breach procedures in place so that data losses, should they occur, can be acted upon quickly and that procedures be in place to encrypt the storage and/or transport of personal information. Companies should also mini- mize the amount of personal in- formation that is collected and retained to that which is actually necessary for the operation of their business. While this may seem obvious to some, not everyone has gotten the message. As part of a purchase I made at a Canadian multi-store computer retailer several months ago, the sales clerk asked to see my driver's licence and then tried to swipe it into their computer. Even last week, a purchase at the Markham location of a cross- border computer retailer had the cashier entering my credit card number into their computer sys- tem, even after the credit card transaction had successfully been processed on the side terminal. Looks like privacy-related litigation has a bright future. LT Alan Gahtan is a Toronto-based technology lawyer. His web site is www.gahtan.com/alan

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