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OP I N I ON BY JIM MIDDLEMISS BACK PAGE Privacy commissioners stifle innovation $14 million for the Ontario information and privacy commissioner, $37 million for the offices of the information and privacy commissioners of Canada, $4.2 million for British Columbia, $6 million for Alberta — you get the point. In fact, many of these offices have C doubled their spending in the past decade and at least one commissioner's spending is outpacing inflation. The federal commissioner expects a 6.4-per- cent increase in spending according to 2011-2012 spending estimates, almost three times the rate of inflation. The heads of these organizations earn in the ballpark of what federally appointed judges do. Not only is it a waste of money trying to protect privacy in a digital age, but agencies like the fed- eral, Ontario, Quebec, Alberta, and B.C. information and privacy commission- ers seem to be in a conflict of inter- est. On one hand, the commissioners oversee freedom of information laws, which require governments and agen- cies to disclose information. So their goal is to foster openness and informa- tion that taxpayers pay governments to gather. On the other hand, the agencies also oversee privacy legislation. On that front, they carp against government departments and the private sector about keeping information private. It's an odd role. I have no qualms with their work when it comes to supporting freedom of information. In a democracy, govern- ments must be open and transparent to the taxpayers and voters they serve. But why should the government be privacy anadian taxpayers spend millions of dollars annu- ally funding government agencies that purport to police our privacy. That's police? We already have criminal laws governing identity theft and fraud and we have the civil courts, so if you feel slighted by a company whose comput- ers are hacked and financial records stolen, you can sue the company in a class action. Instead, we decide to create multimil- lion-dollar bureaucracies to police the "unpoliceable," when the money would be better spent beefing up enforcement of the Criminal Code's identity theft provisions. Federal Privacy Commissioner Jennifer Stoddart would rather seek headlines by beating up job creators like Facebook and Google over their privacy policies and attempt to drag Canada back into the Dark Ages, like an ecclesi- astical court from the mid-century. Signing up for web sites is a contrac- tual issue between users and the com- panies supplying a service. If consum- ers don't like the privacy policies, then they can choose not to use the service — simple as that. The free market rules. If consumers reject the company's pri- vacy policies, it will fail. It's their choice. There is a real paternalistic flavour to the privacy portion of the commission- ers' role. They seem to think it is their role to protect those who are willing to expose their intimate details to the world. The youth of At a Legal Marketing Association seminar last year on the changing face of legal marketing, digital marketing guru Mitch Joel chuckled about con- cerns expressed by those over 35, who chide today's youth over their online antics. He basically said get over it. The job of managers in the future won't be to chastise job seekers for their Internet escapades. It will be to figure out which of those idiots to hire because they almost all engage in such activity. The privacy commissioners, and the gov- ernments that create them, should take note: we don't need the nanny state to protect us. If Google and Facebook can develop a better understanding of web surf- ers' habits and use that information to build new products and services, that's called innovation, which has built great economies in places like Canada, the United States, and the United Kingdom. Rather than stifling innovation, gov- today have a differ- ent attitude towards privacy than their elders. If they choose to post drunken photos of themselves on Facebook, it's their right. It's the same for posting vid- eos on YouTube. (No doubt some priva- cy commissioner somewhere has photos or video, if not tales, of doing something stupid in his or her youth. The only dif- ference is that person didn't have the Internet to share it with the world.) 54 N O VEMBER / D ECEMBER 2011 www. CANADIAN Lawyermag.com ernments should get out of the way. Headline-seeking privacy commission- ers should butt out and focus on gov- ernments that don't like to cough up information. They're the ones that we really need to worry about. Jim Middlemiss is a Toronto lawyer and co-owner of WebNews Management Corp. He can be reached at jmiddlemiss@ webnewsmanagement.com. SCOTT PAGE