On May 13, 2021, the Office of the Privacy Commissioner of Canada (the OPC) announced that it has closed its file on a complaint against the Liberal, Conservative, and New Democratic Parties (the Parties), noting that the activities in the complaint are not subject to the privacy obligations under the Personal Information Protection and Electronic Documents Act (PIPEDA).
The complainant argued that the Parties are subject to PIPEDA because they engage in commercial activities to sell or promote their brand to voters and to sell or promote goods, services, and business interests. To support its claim, the complainant cited examples of political advertisements that feature the Parties convincing Canadians to purchase party-branded memorabilia, make donations, elect party candidates to political office, and support selected policies. The complainant claimed that the Parties, under PIPEDA, are obligated to inform Canadians of how they collect, use, or disclose their personal information to conduct political advertising, including “micro-targeted” advertisements that are based on detailed profiles of individuals. The complainant alleged that the Parties are in violation of this obligation and requested that the OPC investigate and issue appropriate recommendations.
Although the OPC agreed that PIPEDA could apply to the Parties to the extent that they engage in commercial activities, it was not convinced that the Parties’ general activities were commercial in nature. The OPC stated that the primary purpose of the Parties’ political advertising is to solicit donations, encourage votes for select candidates, or garner support for certain political platforms. The OPC determined that there is no element of exchange in these activities as nothing is sold, bartered or leased, and contributors do not reasonably expect anything in return for their donations. Furthermore, the OPC said that despite the specific examples cited by the complainant having an element of exchange, they do not qualify as commercial in nature because they involve the raising of funds for the Parties’ political activities.
The OPC was further influenced by Parliament’s recent refusals to subject the Parties to PIPEDA. In 2018, during the examination of Bill C-76, Elections Modernization Act, Parliament refused to act on the OPC’s submission to extend PIPEDA to federal parties. In closing the file, the Commissioner stated that: “Although I strongly believe that privacy laws should govern political parties to better protect both privacy and democratic rights, I must apply the law as it is today.”
Summary By: Imtiaz Karamat
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