New Ontario minister walks into privacy debate

While the new Minister of Consumer and Business Services has barely had time to settle in, the marketing industry is ready for him. Tim Hudak, formerly Ontario minister of tourism, who replaces Norm Sterling, is walking into the Ontario privacy debate.
Ministry officials say the draft privacy bill will remain the 'highest political priority' for the Ministry, but it's not sure yet what slant the minister may take on some of its contents.

While the new Minister of Consumer and Business Services has barely had time to settle in, the marketing industry is ready for him. Tim Hudak, formerly Ontario minister of tourism, who replaces Norm Sterling, is walking into the Ontario privacy debate.

Ministry officials say the draft privacy bill will remain the ‘highest political priority’ for the Ministry, but it’s not sure yet what slant the minister may take on some of its contents.

The proposed Ontario legislation – introduced mid-February – attempts to govern how the private, not-for-profit and health care sectors collect, use and disclose personal information. (While in the end, health privacy and personal privacy will be included in one piece of legislation, the revised draft, which is almost complete, re-organizes and divides the two aspects.) Bryan Kelcey, spokesperson for the Ministry, expects the bill to hit the legislative floor in early summer (June/July), thus coming into effect in the fall. Ontario businesses would have until 2004 to comply – matching the federal privacy legislation compliance window.

‘We are actually not in a hurry to put out the re-organized draft for the simple reason that it may give the wrong impression that we have not ‘heard anything’ if it does not incorporate all of the concerns,’ Kelcey says. ‘Draft 15 will only re-organize the bill; it won’t change the substance of it, and we do plan to change the substance of it.’

The Ministry of Consumer and Business Affairs will now concentrate on incorporating recommendations and changes to the bill – based on the 500 submissions it has received. It will also brief the new minister ‘very closely’ he says, ‘to not only be aware of some of the things we’ve already agreed on, but also to make sure that he’s aware of the choices that are out there.’

For its part, the Canadian Marketing Association is hopeful the new minister may take a ‘fresh’ look at the legislation and what it means for Ontario businesses and the economy, says CMA president John Gustavson.

‘He’s got the opportunity to make his own determinations. First thing that will happen is his staff will brief him, and he may buy into what they say, but we’ll be second through the door to give him another perspective.’

The CMA’s lobbying effort has been making progress slowly, he says. ‘The opt-out is still in the air and it’s essential that we achieve that,’ says Gustavson. ‘But we have been invited to sit down with the Ministry when the new revised bill is proposed to go over it in detail with them. We’ve got a good track record with the federal privacy legislation and our own compulsory code. So we make no apologies when we find something that doesn’t work.’

One of the CMA’s top concerns, he says, is the issue of ‘expressed positive consent’ – collected consumer information can only be used to fulfill the transaction at hand, nothing further.

‘Minister Sterling said last month that implied consent could be used to market additional goods and services – there would be limitations, but that’s one major move by the former minister since the initial meetings. That would at least allow you to talk to your own customers. It’s not clear, however, if it has to be related goods and services or if you could market additional business lines,’ says Gustavson.

The other main issue for the CMA is opt-in versus opt-out consent – including the transfer of information that a reasonable person would not consider sensitive to a third party based on some form of opt out – third party includes any agent that is doing something with the info only on that client’s behalf.

‘We agree opt-out has to be brought to the consumer’s attention, easily understood and easy to execute, because quite frankly, a lot of marketers have not properly given the opt-out opportunity. The marketing community has got to do a better job, but it may be too late.’

The Ministry is still holding the position that opt-in is its preference. However, Kelcey says it is looking closely for clear and effective opt-out models within the submissions. Those alternatives range from using the federal model (and distinguishing between sensitive and non-sensitive information) to various models that include prescribing what the unacceptable opt-out model is, or having opt-out for old data and opt-in for new data, he says.

‘As long as they aren’t opt-out models that only convey a pretense of privacy protection, we’ll genuinely consider them,’ he says.

As for the issue of ‘implied consent,’ Kelcey says the government is trying to target situations where someone would be surprised at the use of their information because they weren’t informed.

‘We’re not trying to stop businesses from speaking to their customers. There’s been a lot of confusion over that – some of it unsurprising, some of it was a bit of unhealthy paranoia.’

Kelcey says the Ministry is still accepting submissions if there are particular issues that may have been overlooked – they may not get the same attention as those submitted before the deadline (March 31), but they will be reviewed.

The CMA has criticized the Ministry’s tight time frame since the introduction of the act – barely three weeks for comments. It immediately contacted members, convened with various other business organizations, including the Canadian Federation of Independent Business and The Retail Council of Canada, and began the political process by meeting with officials of the ministry proposing the act, as well as the Economic Development industry.

‘We had to make sure that they understood what this act was going to do to the economy – clearly they would not be letting this go ahead given the tens of thousands of jobs the act – in its current form – would cost,’ Gustavson says, citing CMA numbers that show the Ontario direct response sector, alone, generates employment for 410,000 people and generates annual sales of $43 billion.

Members were deliberately told not to contact their MPPs until the new premier was elected and his new cabinet appointed last week. Since then, CMA members have been provided with a briefing note and MPP letter.