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.

Tuesday, July 19, 2005

PIPEDA and non-personalized secondary marketing 

It has always been clear that using a list of customers to send marketing information is a "secondary use" of personal information for which PIPEDA demands consent. It has, however, been the opinion of many that "envelope stuffers" or "invoice stuffers" that do not differentiate among customef are not really a "use" of personal information.

The Assistant Privacy Commissioner of Canada has today weighed in on the question, in PIPEDA Case Summary #308: Opting-out of marketing inserts in account statements, and has concluded that it does amount to a use of personal information. Furthermore, banks and others are required to allow customers to opt-out of this form of marketing.

The finding includes:

  • The bank in this case contended that the inserts were not addressed personally to the client but rather were placed, without distinction, in the account statement addressed to the client. The Assistant Commissioner, however, noted that the customer’s personal information was still being used, and the goal of placing such inserts was nevertheless one of marketing and was secondary to the reasons for which the complainant initially gave his personal information, namely to receive a credit card.
  • The bank informed the complainant through its agreement and disclosure statements that clients might receive marketing information with their account statements. While the bank believed it reasonable for customers to opt-out of secondary telephone or direct marketing, and offers customers the option to refuse such marketing, it did not believe it reasonable for customers to opt-out of statement inserts, many of which concern products or services that have nothing to do with the service for which the customer provided his or her personal information. As the Assistant Commissioner noted, marketing is marketing, whether it arrives in a bank statement or in the form of a telephone call. The bottom line is that, under the Personal Information Protection and Electronic Documents Act, individuals have the right to opt-out of secondary marketing.
  • The Assistant Commissioner therefore determined that by not providing a means of withdrawing consent to secondary marketing, the bank was requiring the complainant to consent to a use of his personal information beyond that required to fulfil the purpose of servicing his credit card account, in contravention of Principles 4.3.3 and 4.3.8 of Schedule 1.

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