Voter information collected by political parties is subject to provincial, not federal, privacy laws, B.C.’s information and privacy commissioner has ruled.
The decision is being hailed by privacy watchdogs as important as it puts political parties on notice about the ground rules – especially in the age of big data and information sharing.
The federal NDP riding association in the Courtenay-Alberni electoral area had collected information in a previous election and used an email address to contact voters.
The case arose after the NDP in February 2018 sent an email invitation for a ‘meet and greet’ with leader Jagmeet Singh. The two complainants in the case, a husband and wife, were among those receiving the email.
One of them wrote to Member of Parliament Gord Johns and to the federal party asking what other information the party held about the couple.
The MP responded saying he had taken it up with the party.
After receiving no further response, the couple contacted commissioner Michael McEvoy’s office.
The party claimed provincial legislation does not apply to it and that the commissioner had no authority to investigate it – assertions the commissioner rejected.
The party did reach out to the couple, saying the information was collected during the 2015 federal election campaign.
The party argued it was covered on constitutional grounds and that it was federal private sector privacy legislation, the Personal Information Protection and Electronic Documents Act (PIPEDA), that applies to it.
The party argued that “Parliament alone is competent to determine the rules that govern elections for Parliament or the activities of electoral district associations.”
The party further argued that Parliament has not prohibited the collection and use of information without an elector’s consent.
The decision said PIPEDA’s purpose is to regulate the collection, use and disclosure of personal information.
“It is silent on the registration of political parties or associations, nomination of candidates, voting processes, campaign financing and a myriad of other election-related matters. It is not about the regulation of elections,” the decision said.
The party had also claimed the so-called doctrine of paramountcy applied, that federal law prevails over provincial.
“It notes that the Canada Elections Act does not contain any provision permitting ‘electors to consent to some but not other uses of their personal information in the federal political process,’” the decision said of the NDP argument.
The party asserted the collection and use of the information was governed by the Canada Elections Act, the Telecommunications Act and national anti-spam legislation.
McEvoy said the party had not shown how the provincial legislation frustrated the purposes of the federal laws.
B.C.’s Freedom of Information and Privacy Association president Mike Larsen said part of the case’s problem sits in how Canada treats political parties as private entities rather than as public bodies.
“They have a substantial role in government,” Larsen said. “The solution to all of this is always transparency.”
He said the issue in the case was that B.C. holds organizations to a higher standard in the collection and use of personal information than does Ottawa.
“You have to have proper privacy and information standards,” Larsen said. “That’s what this case is about.”
This case is not the first time McEvoy has put a political party on notice.
In February, he reported that B.C.’s NDP has been giving Facebook voters’ names, phone numbers, city of residence and dates of birth. He said the Liberals had uploaded a financial donor list to the global social media site and that the Green Party also uses a technological tool to link email address to social media profiles, something the commissioner said lacks consent.
“All of the parties need to do much better to ensure they are within the boundaries of the Personal Information Protection Act,” he said in an interview.
He said the practices breaks down trust between parties and voters.