OPC responds to privacy complaint against three federal political parties

The Office of the Privacy Commissioner of Canada (OPC) has closed the file on a complaint against three of Canada’s federal political parties noting that the federal private sector privacy law does not apply to the activities outlined by the complainant.

The OPC concluded that the Personal Information Protection and Electronic Documents Act (PIPEDA or the Act) does not apply to the activities of the Liberal, Conservative and New Democratic Parties that are the subject of the complaint as they are not commercial in character.

The complainant, Robert (Gary) Dickson, who is being represented by Bill Hearn of Fogler, Rubinoff LLP and supported by the Centre for Digital Rights, submitted that activities undertaken by the federal political parties for the purpose of selling and/or promoting their brand to voters and generally to sell or promote their goods, services and business interests are commercial activities and are therefore subject to the Act.

The complainant claimed that the federal political parties are contravening PIPEDA by not properly informing Canadians how they collect, use, or disclose their personal information to conduct political advertising, including “micro-targeted” ads based on detailed profiles of individuals.

In response, both the Liberal Party and the New Democratic Party indicated that they are not engaged in commercial activities as defined by PIPEDA when they attempt to gain public support or solicit donations or memberships and that therefore the Act did not apply to these activities. The Conservative Party of Canada did not provide a response.

The OPC reviewed the representations received from the parties and found that federal political parties’ general practices with respect to the collection, use and disclosure of personal information involve many activities that are not commercial in nature.

Although the sale of merchandise, memberships, and tickets involves an element of exchange, the OPC was not convinced that those transactions, which all involve raising funds for political activities, qualify as commercial in character given the context in which the federal political parties operate.

Further, even if those specific transactions were considered to be commercial in character, that would not allow the OPC to investigate the general practices of federal political parties in relation to political advertising for all voters.

The OPC has repeatedly called for political parties to be subject to legislation that creates obligations based on internationally recognized privacy principles and provide for an independent third party authority to verify compliance. While the OPC strongly believes that privacy laws should govern political parties to better protect both privacy and democratic rights, the Commissioner must apply the law as it stands today.