The purpose of Part 1 (of PIPEDA) is to establish "rules to govern the collection, use and disclosure of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances." (See Section 3)
I want this page to be balanced and fair with respect to all matters, especially that of answering the question which asks if, technically and lawfully, PIPEDA applies or does not apply to genealogical societies in provinces that have not passed similar legislation. I’m afraid that, at the moment, it will be up to others to provide ‘the balance’ with respect to that matter, however, given my firmly held view that Parliament intended that PIPEDA would apply, in every respect, to our genealogical organizations. But do know that I will be very able and very willing to change my mind about that, ‘if and when I’m persuaded otherwise.’ In fact, I’m able and willing to invent and publish the following as one argument that, when perfected, just might lay my heartfelt and certain opinion to rest.
What of that argument having it that, while the Act admittedly does apply, it ought not to and does not limit genealogical societies with respect to the collection, use and disclosure of personal information. What’s that all about? Section 5(3) brings to mind the argument that, although PIPEDA does apply to genealogical societies in Saskatchewan, Manitoba and Ontario, for examples, it was not intended to and does not forbid the collection and use of personal information by them, as has always been done, without the consent of people affected by the doing of that. Doing so has always been considered reasonable and not inappropriate, some might say.
PIPEDA records the somewhat curious, vague and potentially contentious provision that “(a)n organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances.”
At first blush, using a subjective test to define a law seems like a very questionable practice, indeed. At the least, it is one that most certainly invites debate and argument. However, with respect to the matter at hand, this “reasonable person” prescription may be desirable, given that it may afford some needed flexibility in the law during ‘these times of rapid changes.’ Are they the views and opinions of a reasonable person in 2001, when PIPEDA partially came into force and effect, or in 2004, when it came into full force and effect, or the views and opinions of a reasonable person given technological and societal changes that have transpired during the past ten or twelve years, or so, that matter? Because protecting personal information is a stated goal of PIPEDA, by controlling the collection, use and distribution of it, I would suggest it must be the latter.
However, as I’ve said, some may well argue that twelve years ago, and before then, unfettered collection, use and republication of personal information by genealogical societies, for gain, was a reasonable and permissible thing to do. They had certainly done that on the prairies, without any challenge that I know about, for twenty or twenty-five years, or so, before then. So, they might argue, it is the reasonable person’s view, as of 2001 and before then, that matters.
I’m not convinced that I could ever make that argument in good conscience (actually, I’m pretty sure that I never could), given that most of us now have computers, and have learned, to some greater or lesser extent, to aggregate massive amounts of personal information found ‘here, there and everywhere,’ on the net, given innumerable incidents of impersonation and fraud, and given that the continued unfettered activity in question will most certainly compound those very serious problems, and others.
I most certainly do think that today’s “reasonable Canadian person” does agree with me in this regard. But who knows for sure!
Sorry, folks! That’s the very best “devil’s advocacy” that I’m capable of. Meagre as it may be, I hope it helps advance and extend our discussion.
M. Lewis Lockhart
Post Script: May I respectfully say to the various genealogical societies in the United States and the countless number of Americans who champion full public disclosure of the vital statistics of all, including those in the land of the living, “let us establish our rules, and we won’t question yours.”
Thank you very much!
PPS: May I also suggest that the word “need,” as recorded by the first paragraph of this comment, may be the most important word recorded by PIPEDA. Is it not fair to challenge the notion that genealogical societies “need” to be collecting, using and republishing personal information about those in the land of the living?