#CyberFLASH: Do You Consent? Four Ways to Strengthen Digital Privacy

CPT500317455_highPrivacy laws around the world may differ on certain issues, but all share a key principle: the collection, use and disclosure of personal information requires user consent. The challenge in a digital world where data is continuously collected and can be used in a myriad of previously unimaginable ways is how to ensure that the consent model still achieves the objective of giving the public effective control over their personal information.

The Office of the Privacy Commissioner of Canada released a discussion paper earlier this year that opened the door to rethinking how Canadian law addresses consent. The paper suggests several solutions that could enhance consent (greater transparency in privacy policies, technology-specific protections), but also raises the possibility of de-emphasizing consent in favour of removing personally identifiable information or establishing “no-go” zones that would regulate certain uses of information without relying on consent.

My weekly technology law column (Toronto Star version, homepage version) notes that the deadline for submitting comments concludes this week and it is expected that many businesses will call for significant reforms to the current consent model, arguing that it is too onerous and that it does not serve the needs of users or businesses. Instead, they may call for a shift toward codes of practice that reflect specific industry standards alongside basic privacy rules that create limited restrictions on uses of personal information.

Suggestions from Canadian business that stronger consent rules are too difficult or costly is nothing new. During the heated debate over anti-spam legislation, the business community claimed that an “opt-in” model of consent that would require a more explicit, informed agreement from users would be expensive to implement and would create great harm to electronic commerce. Yet the reality is that the opt-in model is used in many other countries to provide better privacy protection and improve the effectiveness of electronic marketing.

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