A Bill, short-titled the "Digital Privacy Act", was
introduced in the Senate on April 8, 2014. It amends various
sections of the Personal Information Protection and Electronic
Documents Act (PIPEDA), which governs the collection, use, and
disclosure of personal information by private sector organizations
for commercial purposes.
PIPEDA provides that in certain enumerated circumstances,
private companies are permitted to disclose personal information
without consent. Section 7(3) currently allows non-consented-to
disclosure in some limited circumstances, including where the
disclosure is required to comply with a court order (subsection
7(3)(c)), and where the disclosurfe is made to an investigative
body or to the government under the reasonable belief that the
information relates to a breach of an agreement or a contravention
of the laws of Canada (subsection 7(3)(d)).
An amendment to subsection 7(3) in the Digital Privacy Act
expands the scope of the permitted exceptions, by allowing private
sector organizations to disclose personal information to each other
without consent if the disclosure is "reasonable for the
purposes of investigating a breach of an agreement or a
contravention of the laws of Canada" (proposed section
7(3)(d.1)). The proposed section further stipulates that the
disclosing organization must reasonably expect that seeking consent
to the disclosure would compromise the investigation.
This proposed new exception is interesting given the recent
Federal Court decision in Voltage Picture LLC v. John Doe and
Jane Doe, 2014 FC 161. In Voltage, a film production
company, Voltage, brought a copyright infringement action in
Federal Court against internet customers who allegedly copied and
distributed Voltage's films without authorization. Voltage did
not have contact information for any of the customers (the
"Does"), and sought that information from a third-party
Internet Service Provider, TekSavvy. TekSavvy refused to disclose
the information forcing Voltage to motion the Federal Court for a
Norwich Order—a litigation tool compelling a third-party to
disclose certain information that only the third-party possesses.
In granting the order, Prothonotary Aalto stressed the need to
balance Voltage's rights to enforce their copyright and the
privacy rights of the TekSavvy customer:
"...The enforcement of
Voltage's rights as a copyright holder outweighs the privacy
interests of the affected internet users. However, that is not the
end of the matter. As part of making any Norwich Order, the Court
must ensure that privacy rights are invaded in the most minimal way
After reviewing decisions from U.K. and U.S. courts in similar
cases, Prothonotary Aalto ordered TekSavvy to disclose personal
information but limited it to names and mailing addresses of
identified customers and imposed a number of conditions on
Voltage's use of that information to protect against Voltage
acting as a "copyright troll" by intimidating customers
into settlements through demand letters and litigation threats. One
of the conditions required Voltage to first submit any demand
letters it plans to send to those customer to the Court for
If it comes into force, the proposed new exception to PIPEDA may
have allowed TekSavvy to disclose the information sought by Voltage
without judicial intervention and oversight. Further, the proposed
exception may have allowed TekSavvy to share more than just the
names and addresses of customers. Section 7(3)(d.1) may be a
potential benefit to copyright and other intellectual property
owners by obviating the need to seek a court order to obtain
otherwise protected personal information from a third-party where
the prescribed conditions exist.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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