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.

Thursday, September 16, 2004

Is circumventing "disclsoure" a distinction without a difference? 

This article relates to the lawsuit that has been brought against Albertsons pharmacies (see Lawsuit: Privacy advocacy group sues drug store chain over alleged privacy concerns). The lawsuit alleges that Albertsons used pharmacy customers' personal information to send marketing communications. According to counsel for the plaintiffs, the way in which the communications were sent is irrelevant:

Albertsons Sued Over Customer-Data Privacy:

"'The specific California code provision that we're dealing with prohibits the pharmacy from selling, sharing, or otherwise using any medical information for any purpose,' Krinsk explains. 'The critical distinction that they make, that we believe is of no consequence, is they say that they don't sell the information. They claim that the process that they employ doesn't constitute selling or using of information. Rather than selling the names and addresses they instead either handle [the data] internally or handle some of it internally and then contract out to third-party administrators. We allege that's a distinction without a difference.' "

For us in Canada, this is not just an interesting read. The same sorts of practices take place all the time here in an effort to circumvent the "disclosure only with consent" requirements of PIPEDA. Many associations used to sell lists to third-parties for marketing purposes but are no longer able to do because they don't have the consent of the members to sell the list to the other organization. To get around this, the organization that wants to market to the members simply pays for the association to send the solicitation on their behaf. Presto, no disclosure. The prevailing opinion is that this fits within the letter of PIPEDA, but is it consistent with the spirit? Is it a distinction without a difference? The distinction is probably lost on members if they receive a mail solicitation apparently from the organization with which they have no pre-existing relationship, unless it really appears to come from the association. As of yet, we have no word from the Canadian Privacy Commissioner or the Federal Court about how this will be viewed.

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