Privacy 2024 Recap – some significant decisions, slow progress for reform

The past year saw a few court decisions of note as well as halting progress toward privacy reform.  Other areas of focus included children’s privacy and online harms as well as regulation of artificial intelligence.  On the reform front, legislation to modernize the federal private sector privacy law, PIPEDA,[1] is stalled in committee and likely will not be passed before the next election.  Similarly, the federal initiative to regulate AI – the proposed Artificial Intelligence and Data Act (AIDA) – currently linked to the privacy reform under Bill C-27 – likely will not be adopted within that timeframe.  However privacy reform and AI regulation are seeing some traction at the provincial level.

OPC v. Facebook – Federal Court of Appeal reverses trial court’s decision

In a decision released September 9, 2024[2] the Federal Court of Appeal overturned the Federal Court’s trial ruling[3] denying the Privacy Commissioner of Canada’s application to order Facebook (now Meta) to rectify the privacy practices that led to the Cambridge Analytica scandal.  The trial court had dismissed the application, finding that the Commissioner had not shown that Facebook failed to obtain meaningful consent from users for disclosure of their data to Cambridge Analytica, including for purposes of political targeting, nor had Facebook failed to adequately safeguard user data.

The Court of Appeal ruled that the trial judge erred in his analysis of the relevant provisions of the federal privacy law, the Personal Information Protection and Electronic Documents Act (PIPEDA), specifically, the provisions addressing meaningful consent and safeguarding data.  The most significant aspect of the Court of Appeal’s ruling is that determining whether there was meaningful consent must be based on the standard of a reasonable person, not the subjective evidence of individual app users.

The trial Court had found that the Commissioner failed to…

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