In an article published this week in The Globe and Mail, Davies partner Anita Banicevic poses the question whether Canada’s Competition Bureau should be involved in privacy-related enforcement of “big data.”

Anita explains that although the Office of the Privacy Commissioner (OPC) is designated to deal with privacy-related issues, the Bureau appears to have sets its sights on privacy-related enforcement. In its discussion paper released in September, the Bureau noted that the “era of big data may warrant devoting greater attention to representations that mislead consumers into giving away their information.” The Bureau provided two examples of instances in which it could view privacy-related statements as “misleading advertising”: misleading statements regarding the collection or use of data and inadequate disclosure regarding the use or collection of data.

According to Anita, having yet another regulator wade into an evolving area could cause significant uncertainty for companies doing business in Canada. Will companies face investigations and possible enforcement from both the OPC and the Bureau? Will the Bureau take the same view as the OPC on what constitutes sufficient disclosure or consent? Anita suggests that a broader consultation among stakeholders (including businesses and the OPC) might be informative and reduce uncertainty for businesses.

The Bureau has said it plans to release an updated summary of its position once it has had the opportunity to consider stakeholder feedback. In the meantime, Anita points out that the potential for the Bureau to demand significant penalties for inadequate or misleading data-related disclosures means that companies should carefully evaluate any public statements regarding the collection or use of data.