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.
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.
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.
Saturday, March 03, 2007
Apparently, CanWestGlobalAsperOmniMedia has outsourced the Canada.com e-mail service to an American company, Velocity Services, Inc.
This is the blurb from the Canada.com website:
Where will my canada.com e-mail account information be stored?
canada.com e-mail (the "Service") is provided by Velocity Services, Inc. ("VSI"), a company located in and conducting its business from the United States. By registering for and/or logging on to the Service, you accept and acknowledge that the information processed or stored outside of Canada may be available to the foreign government of the country in which the information or the entity controlling it, is situated under a lawful order made in that jurisdiction and no longer falls under the jurisdiction of Canada's Personal Information Protection and Electronic Documents Act ("PIPEDA") nor be subject to canada.com's Privacy Statement.
That's all well and good, but I'm pretty confident that you can't wave a magic wand and say that PIPEDA no longer applies. Either of two things have happened here: (a) VSI is providing this service on behalf of CanWest, or (b) CanWest has now sold Canada.com's e-mail service to VSI. In neither case would PIPEDA cease to apply. For Canadian customers, there is enough of a real and substantial connection between the service and Canada for Canadian laws to apply. This would include PIPEDA.
In this conclusion, I have some comfort in the recent decision in Lawson v. Accusearch Inc., 2007 FC 125 (CanLII):
" We revert to geographical considerations, and the concept of forum non conveniens. The collection and communication of private information was both here (Canada) and there (United States) (Libman v. The Queen, 1985 CanLII 51 (S.C.C.),  2 S.C.R. 178). The location of the website and the jurisdiction in which Accusearch Inc. was incorporated are not all controlling.
 It would not be appropriate to comment further on the discretion, if any, of the Commissioner to decline to exercise the jurisdiction given her by Parliament. The decision before me was that Parliament had not given her jurisdiction. However, I raise this point of discretion because it may be relevant when this matter is referred back to her for further investigation, or in other complaints. We do not know the status of the complaint filed in the United States, or the risk of double jeopardy to the respondent.
 In conclusion, PIPEDA gives the Privacy Commissioner jurisdiction to investigate complaints relating to the transborder flow of personal information."
Thanks to Canadian Journalist :: Canada.com now ...AMERICAN??? for the link. Time to cancel my old Canada.com e-mail account.
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