Backgrounder
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 recognized 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. The BC Supreme Court has ruled that 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.
Chronology
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 11 and 12, 2022, the Liberals, Conservatives and the NDP asked the Supreme Court of British Columbia to review this ruling.
On May 14, 2024 the Court upheld OIPC’s ruling that PIPA applies to the FPPs. This decision affirms that provinces have the constitutional power to include the FPPs in privacy legislation.
Quotes from the Decision
“The rapid advancement of technological tools allowing for the harvesting of private information for the purpose of profiling and micro-targeting voters has created risks of misuse of personal information that could result in the erosion of trust in our political system.”
Liberal Party of Canada v. The Complainants, 2024 BCSC 814 (“Liberal Party”) at para 2
“This is the first time that a Canadian Superior Court has considered the constitutional applicability of provincial privacy legislation to FPPs.”
Liberal Party at para 6
“There is no requirement for FPPs to disclose how it has used personal information or who it has been disclosed to. There is no right of access to personal information held by FPPs.”
Liberal Party at para 23
“There are no minimum standards in [Bill C-67, which amends privacy provisions in the CEA] that parties must follow. Nor is there any oversight mechanism to monitor whether parties abide by the contents of their policies, or any sanctions in case of non-compliance.”
Stéphane Perrault, Chief Electoral Officer, Elections Canada
Canada, Parliament, Senate, Standing Committee on Legal and Constitutional Affairs, Evidence, 44th Parl, 1st Sess (3 May 2023) (Stéphane Perrault, Chief Electoral Officer, Elections Canada) <https://sencanada.ca/en/Content/Sen/Committee/441/LCJC/54EV-56175-E> accessed 6 June 2024 (quoted in Liberal Party at para 51)
“[Bill C-67] creates a framework for a potential future regime. It does not actually establish any such regime.”
Canada, Parliament, Senate, Standing Senate Committee on Legal and Constitutional Affairs, Fourteenth Report, 44th Parl, 1st Sess (2 June 2023) <https://sencanada.ca/en/committees/LCJC/Report/117611/44-1> accessed 6 June 2024(quoted in Liberal Party at para 52)
FIPA is pleased to work with a variety of civil society groups on this issue. You can also check out the backgrounder from Open Media here.
