The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.

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The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.

For full contact information and a brief bio, please see David's profile.

Please note that I am only able to provide legal advice to clients. I am not able to provide free legal advice. Any unsolicited information sent to David Fraser cannot be considered to be solicitor-client privileged.

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The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.

This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.

Wednesday, June 02, 2004

Article: The Impact of PIPEDA 

Today's Globe Technology has a comment by Adam N. Atlas, a member of the bars of Quebec and New York. He discusses the cross-border aspects of PIPEDA and the article merits a read.


"The best kept secret in privacy law is what to do about cross-border information transfers. There has been a lot written about the new Canadian privacy law, entitled Personal Information Protection and Electronic Documents Act (PIPEDA), but few lawyers or other experts are willing to offer an opinion on the legality of international cross-border information transfers under PIPEDA.

To date there is little to be found within the published rulings of the Privacy Commissioner that can definitively answer the numerous questions that this issue poses. This is surprising given that nearly every business in Canada faces the privacy question almost on a daily basis. The following is a practical overview for any business that sends or receives any personal information from or to Canada across international borders. ..."

The one area that he doesn't really touch on is probably the most prevalent example of the impact of PIPEDA on cross-border data flows. That is American retailers doing business with Canadian customers. For example, Land's End and LL Bean both collect personal information in association with any sale to a Canadian. PIPEDA itself is silent about its impact on cross-border transactions, but the Commissioner's office has taken the view that PIPEDA applies. Usual Canadian principles of conflicts of laws would suggest that Canadian federal law can apply where there is a "real and substantial connection" with this jurisdiction. Since the law is designed to protect Canadian residents and the collection would be deemed to take place "in Canada", applying it to American retailers is consistent with that purpose. The company may be able to tell the Commissioner to buzz off when she calls the corporate offices in Ohio, but the Federal Court's order or award of damages may be enforceable outside of the country. If the company has assets in Canada, it has a much stronger interest in complying.


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