The federal Privacy Commissioner is taking Facebook Inc. to court over the possible misuse of the personal information of Canadians in a case that highlights the complex process behind the enforcement of the country’s privacy laws.
Last year, the watchdog tried and failed to obtain assurances from Facebook that it was now able to prevent the unauthorized use of private information by third-party apps.
On Thursday, the Privacy Commissioner took its case to the Federal Court, hoping for a declaration that Facebook has contravened Canada’s federal private-sector privacy law.
A legal expert said the case highlights the difficulties facing the Privacy Commissioner in enforcing Canada’s current privacy laws.
“If Facebook planned to comply with the Privacy Commissioner’s recommendations, it would have already done so,” said Teresa Scassa, law professor at the University of Ottawa and Canada Research Chair in information law and policy.
Prof. Scassa said the case highlights the need to modernize Canada’s privacy laws. In this case, the Federal Court will not be able to rely on the existing work of the Privacy Commissioner, but will need to hear evidence afresh.
“The bigger issue behind this is the state of Canadian data-protection law,” she said. “It’s obvious that the Commissioner doesn’t have order-making powers and that it is possible for large, powerful corporations to push back against the Commissioner’s findings.”
In a statement, Facebook said it has put in place measures that go “above and beyond what other companies do” in terms of protecting the privacy of its users.
“We look forward to defending the many pro-active and robust improvements we’ve made to our platform to better protect people’s personal information,” said Facebook spokeswoman Erin Taylor.
The Privacy Commissioner’s investigation into the misuse of Facebook data by British political consulting firm Cambridge Analytica started in March, 2018. Done in conjunction with the B.C. Information and Privacy Commissioner, the final report published in April, 2019, found that Facebook violated the privacy rights of Canadians.
The Privacy Commissioner of Canada is now arguing that Facebook “rejected or failed to adequately address” its recommendations. Privacy Commissioner Daniel Therrien is now calling on the Federal Court to enforce Canada’s federal private sector privacy law, called the Personal Information Protection and Electronic Documents Act (PIPEDA).
“The [Office of the Privacy Commissioner] has concluded that until Facebook corrects its practices to comply with PIPEDA, there is, and will continue to be, an ongoing risk that Canadians’ personal information will be disclosed by Facebook to apps or other third parties and used in ways that users do not know or expect,” the federal watchdog said in its court filing.
The scandal at the heart of this matter involved a third-party Facebook app called This Is Your Digital Life, which was promoted as a personality quiz but was used to scoop up the personal data of users and their Facebook friends. The data were then compiled into psychological profiles to tailor political messages in international political campaigns.
The federal government has promise to strengthen privacy laws, including through new and larger fines against companies that fail to protect the personal information of Canadians. A spokeswoman for Innovation Minister Navdeep Bains said the plan will include setting up a new watchdog called the Data Commissioner.
“This will ensure that we have the right set of tools to regulate large digital companies to better protect people’s personal data and encourage greater competition in the digital marketplace,” said spokeswoman Véronique Simard.
PARLIAMENTARY AFFAIRS REPORTER
The Globe and Mail, February 6, 2020