Comprehensive research in Canada and other countries has revealed that political parties are gathering significant amounts of personal information on voters designed to profile the electorate and enable micro-targeting techniques for delivering political advertising.
Much of the personal data captured on political opinions is sensitive, and is recognised as such in other jurisdictions, and especially those regulated by the European Union’s General Data Protection Regulation (GDPR).
Under current regulatory and judicial rulings, political parties appear to be one of the few categories of organization in Canada not regulated by either provincial or federal privacy protection laws of general application (with BC and Quebec being the exceptions).
The Canada Elections Act (CEA) applies only to the information contained in the list of electors. It does not apply to the masses of other personal data FPPs capture on Canadian voters, and to the profiles and scores they build. The FPPs’ only privacy obligation under this legislation is to develop and publish a privacy code of practice. This is a very weak standard and lacks independent expert oversight.
In the BC exception, PIPA has long been held to apply to provincial political parties, and the Commissioner has previously conducted investigations of their activities. PIPA is a valid provincial law, passed within provincial jurisdiction over property and civil rights. PIPA does not create an operational conflict with any federal law, such as PIPEDA and the CEA, nor does it impair the exercise of a core federal legislative power. As such it does not intrude on the ability of the FPPs to carry out their mandates.
Opinion polls have demonstrated that a vast majority of Canadians want the FPPs subject to strong privacy regulations.
The provincial and federal privacy commissioners have called on the FPPs to be regulated.
The House of Commons’ Standing Committee on Access to Information, Privacy, and Ethics has recommended that private sector privacy laws apply to the FPPs.
Since its passage, PIPA has applied to a variety of organizations in the province of BC. It establishes narrow exclusions by definition. Political parties (be they provincial or federal) are not excluded.
In 2018 complaints were made to the OIPC regarding a federal riding association in BC and how it handled personal information.
On August 28, 2019, OIPC Commissioner Michael McEvoy released Order P19-02 which concluded that there were no constitutional reasons why PIPA should not apply to the personal information of BC residents captured by an electoral district association of a federal political party operating in BC.
Shortly afterwards, three BC residents sought to access the personal information that four registered FPPs held about them. The residents were dissatisfied with the results and filed a complaint with the OIPC under PIPA. The Liberals, NDP, and Conservatives then hired high-powered law firms to challenge the Commissioner’s jurisdiction.
On March 1, 2022, Order P22-02 was released by the OIPC, which was drafted by former Commissioner, David Loukidelis QC. He concluded that the FPPs (as unincorporated associations) are indeed “organizations” under PIPA, and that FPPs are included in its scope.
As reported, the FPPs have advanced numerous arguments against being subject to privacy protection legal guardrails. The FPPs all argued that federal law overrides PIPA, and that applying such laws intrudes on the power of FPPs to unilaterally act with the personal information they hold.
On April 11th and 12th, 2022, the Liberals, Conservatives and the NDP asked the Supreme Court of British Columbia to review this ruling.