OTTAWA – The Standing Senate Committee on Transport and Communications met this morning for the fifth time to continue its examination of how the three federal communications statutes (the Telecommunications Act, the Broadcasting Act, and the Radiocommunication Act) can be modernized to account for the evolution of the broadcasting and telecommunications sectors in the last decades.
With the testimony of the Privacy Commissioner, Daniel Therrien, it became obvious, to us anyway, that the many consultations undertaken by government lately, including the Broadcasting and Telecommunications Legislative Review (BTLR) will necessitate significant co-ordination when they will be writing the recommendations leading to the various legislations involved.
With the end of the National Digital and Data Consultations on October 12, 2018, it is likely that one outcome will be to bring changes to the Personal Information Protection and Electronic Documents Act (PIPEDA). These changes could impact the Telecommunications Act and it is even one of the questions asked by the BTLR expert panel, “Are further improvements pertaining to consumer protection, rights, and accessibility required in (telecommunications) legislation? ‘in its present consultation.
Another legislative review currently being conducted is the Copyright Act review, which Cartt.ca has been covering closely. Finally, it is unclear whether the USMCA will further impact the sectors. (Ed note: Confused yet?)
The Telecommunications Act states that: “It is hereby affirmed that telecommunications performs an essential role in the maintenance of Canada’s identity and sovereignty and that the Canadian telecommunications policy has as its objectives (i) to contribute to the protection of the privacy of persons.”
Of course, the Telecommunications predates the PIPEDA, but as the Privacy Commissioner motioned yesterday, PIPEDA is a general application law that applies to all sectors and it allows the CRTC to go further in its applications, for example for express content as opposed to implied content.
“PIPEDA applies to Netflix. Should the Telecommunications Act apply to Netflix?” – Daniel Therrien, Privacy Commissioner
“PIPEDA applies to Google, Facebook, et cetera, but not the Telecommunications Act. Netflix is an interesting company for this question of which law should apply to Netflix. PIPEDA applies to Netflix. Should the Telecommunications Act apply to Netflix? I know that privacy is only one of the issues that are in front of you, so my comments are strictly on privacy,” said Therrien.
Another recommendation is that “Under the current laws, all regulatory agencies are prohibited from sharing information with others, including our sister regulatory agencies, which somewhat impedes the completeness of the studies that we make. We can have discussions at the broad policy level with the CRTC and the Competition Bureau, but when we investigate specific complaints we cannot share with them—although it would be very productive—the product of our investigations because we are legally prohibited,” explained Therrien.
“So, the information for which I would like more flexibility—and I think the sister agencies are in agreement with that—would be information that we collect in the course of our work.”
Finally, the Commissioner recommended that he be given more powers that would apply to the communications industry.
“The opaqueness of technologies and business models is what leads us to say that because consumers are not well placed to identify problems in terms of what is happening to their information, one of the crucial elements in the law that should change would be to give us—because we have some technological knowledge and business models in this sphere—the authority to audit or inspect what is happening under the hood of technology used by companies so that we can ensure that what is happening is consistent with privacy law.”
