“The intent and principles of PIPEDA line up almost perfectly with genealogical emphasis about privacy protection and the ethics surrounding that, but the genealogical societies do not seem to be aware that it could be a fantastic tool in ensuring those ethics are followed and are caught up instead in determining whether or not they are bound by the legislation. In my opinion PIPEDA needs to be embraced and it's principles entrenched into genealogical societies' policies and practices.”

September 7, 2013
G. Alvin Murray, Certified Saskatchewan Instructor, CCSG


The following was taken from R. v. Dyment, [1988] 2 SCR 417, as reproduced at http://canlii.ca/t/1ftc6:

“22. Finally, there is privacy in relation to information. This too is based on the notion of the dignity and integrity of the individual. As the Task Force put it (p. 13): "This notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit." In modern society, especially, retention of information about oneself is extremely important. We may, for one reason or another, wish or be compelled to reveal such information, but situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected. Governments at all levels have in recent years recognized this and have devised rules and regulations to restrict the uses of information collected by them to those for which it was obtained; see, for example, the Privacy Act, S.C. 1980-81-82-83, c. 111.

23. One further general point must be made, and that is that if the privacy of the individual is to be protected, we cannot afford to wait to vindicate it only after it has been violated. . . . Invasions of privacy must be prevented, and where privacy is outweighed by other societal claims, there must be clear rules setting forth the conditions in which it can be violated.” (Emphasis added)

From http://www.canlii.org/en/ca/scc/doc/1997/1997canlii358/1997canlii358.html, at paragraph 67, in the case of Dagg v. Canada (Minister of Finance), [1997] 2 SCR 403, we learn that the Supreme Court of Canada also invites us to consider R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30, at p. 46 (“privacy may be defined as the right of the individual to determine for himself when, how, and to what extent he will release personal information about himself”); (and) R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at pp. 613-15 (per L’Heureux-Dubé J., dissenting); Westin, supra, at p. 7 (“[p]rivacy is the claim of individuals . . . to determine for themselves when, how, and to what extent information about them is communicated to others”); (and) Charles Fried, “Privacy” (1968), 77 Yale L.J. 475, at p. 483 (“[p]rivacy . . . is control over knowledge about oneself”).


The design of this site is to readily afford access to ‘research tools’ that may be used to answer the question which asks if the Saskatchewan Genealogical Society (SGS), and certain other genealogical societies, are or are not limited by the terms and provisions of The Personal Information Protection and Electronic Documents Act (PIPEDA) when indiscriminately collecting and selling personal information about those “in the land of the living.”

Friday, August 30, 2013

PIPEDA - some thinking that invites correction if I've 'got it wrong.'

The Personal Information Protection and Electronic Documents Act (S.C. 2000, c. 5), commonly known as PIPEDA, and always known to me as “the monster,” is federal legislation that applies in Saskatchewan, and most other provinces, to individuals and private-sector organizations that collect, use or disclose personal information in the course of "commercial activities." It defines "commercial activity" as any transaction, act, conduct or regular course of conduct that is of a commercial character.  To the extent that it applies, PIPEDA requires that personal information about an individual must not be collected, used or disclosed without that individual’s awareness and consent.  It further requires, in those circumstances where it does apply, that those who have collected personal information must provide adequate safeguards to protect that information, and, with respect to particulars, must disclose those to everyone who may request his or her personal information, in order that it may be corrected if it is mistakenly recorded.

Do vocational genealogists in Saskatchewan have to comply with those rules?

I don’t think so!  I say that despite the fact that some in high office would have us believe otherwise, which is why I say that with a modicum of uncertainty; but I do think that, generally speaking, the agency principle does apply to the work that we do, and that, in virtually all cases, that principle excuses us from having to think and worry about PIPEDA.

Three years ago, in the case of State Farm Mutual Automobile Insurance Company v. Privacy Commissioner of Canada, 2010 FC 736 (CanLII), the Federal Court of Canada determined that PIPEDA does not apply to a collection, use or disclosure of personal information merely because it is collected, used or disclosed by an agent on behalf of a principal who pays for the services of the agent, which is to say on behalf of a principle with whom the agent has a “commercial relationship.”

In that case, which was one of a Defendant hiring a private investigator to conduct video surveillance in a search for evidence to be used in a trial, the judge decided that:

“. . . on a proper construction of PIPEDA, if the primary activity or conduct at hand, in this case the collection of evidence on a plaintiff by an individual defendant in order to mount a defence to a civil tort action, is not a commercial activity contemplated by PIPEDA, then that activity or conduct remains exempt from PIPEDA even if third parties are retained by an individual to carry out that activity or conduct on his or her behalf. The primary characterization of the activity or conduct in issue is thus the dominant factor in assessing the commercial character of that activity or conduct under PIPEDA, not the incidental relationship between the one who seeks to carry out the activity or conduct and third parties. In this case, the insurer-insured and attorney-client relationships are simply incidental to the primary non-commercial activity or conduct at issue, namely the collection of evidence by the defendant Ms. Vetter in order to defend herself in the civil tort action brought against her by Mr. Gaudet.”

In the light of that, it is hard to imagine that any vocational genealogist will ever be found to have collected, used or disclosed personal information about others as a “commercial activity,” the only conceivable exception being the compiling of information about living individuals for the purpose of selling that information in the way that Gail Morin has done with respect to her Métis families genealogical compendium.

Do you agree or disagree with me, concerning this matter?

Do prairie provincial genealogical societies have to comply with those rules?

I think so!  That’s because they do more than act as an agent when conducting research for their clients.  They also collect information, including personal information about those in the land of the living, so that may be subsequently sold to individuals ordering obituaries that have been clipped and saved, photocopies of pages from local history books or extractions from databases like the SRI, for examples.  In those cases no agency relationship exists that excuses them from application of that law.

Or so I also believe the case to be. All of which I share "to be corrected where I'm wrong."

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