Tuesday, May 14, 2013

Bill 65 Creates New Corporate Privacy Right by Greg

Last month, I wrote about the Sask Party's choice to redefine "privacy" to apply to corporations under Saskatchewan's securities legislation:

Until now, privacy has been recognized under Canadian law as being an individual right. As Justice La Forest wrote, "An expression of an individual's unique personality or personhood, privacy is grounded on physical and moral autonomy - the freedom to engage in one's own thoughts, actions and decisions..." These core concepts - an individual's unique personality, physical and moral autonomy, and freedom related to personal thoughts and actions - have no place whatsoever in discussing corporate interests.
(A) redefinition of privacy to benefit corporations would have consequences that might prove antithetical to a libertarian viewpoint. If a right intended to protect individuals from corporate and state intrusion gets turned on its head, there's no telling what individual interests might end up being annihilated in the name of corporate privacy - from negative reviews to whistleblowing to basic consumer and investor disclosure requirements.

Well, Bill 65 has now been passed without any change to the bill's new declaration of a corporate privacy right. So what will that mean for the interpretation of Saskatchewan law?

It's true - as argued by the Wall government - that the protection of personal information under the Freedom of Information and Protection of Privacy Act isn't directly changed by the wording of securities legislation. But that's largely because FOIP - rather than relying on the term "privacy" as its basis for protecting information - is instead highly specific in its definition of "personal information".

In contrast, the Privacy Act is deliberately broad in addressing breaches of privacy held by a "person" - a term which by law includes a corporation. And the Wall government's choice to declare the existence of corporate privacy under securities legislation will allow corporations to argue that there's some legislative intent to create a cone of silence around corporate activity - meaning that there's now additional risk of a tort claim against anybody who publishes internal documents which a corporation wishes to suppress, or monitors corporate activity without the corporation's agreement. 

Again, the problem could have been avoided by simply mirroring the wording of FOIP and other statutes which protect genuinely confidential information and trade secrets without decreeing that all corporate activity is presumptively hidden from public view. But the Sask Party has instead chosen to completely rewrite the existing meaning of "privacy" to extend it to corporate interests. And we can only guess what fallout that will produce in the years to come.

[A more opinionated version of this post can be found at Accidental Deliberations.]

This blog consists of general legal information only, and does not constitute the provision of legal advice to any person or organization. Please contact me at gfingas@grj.ca if you require legal advice related to privacy issues.

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