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Social
Continued From Page 9
Information Protection and
Electronic Documents Act
(PIPEDA), it is “definitely not a
straightforward issue,” as one
privacy lawyer put it.
Generally speaking, where
PIPEDA applies to an organization that collects, uses or discloses personal information for
purposes of underwriting, the
organization is expected to
obtain consent for its practices,
and be open and transparent
about those practices, AnneMarie Haydon, spokesperson
for the Office of the Privacy
Commissioner of Canada
(OPC), wrote in an email to The
Lawyers Weekly. The OPC is
currently investigating the use
of credit scores to determine
insurance premiums and therefore refused to comment on
whether amassing online data
obtained from social networks
to help underwrite insurance
policies infringes PIPEDA.
PIPEDA, however, does
allow, under certain circum-
stances, the ability to collect
and use personal information
that appeared in a publication,
“So far, this
is a regulation
that has not
been given
much focus,”
said Kaufman.
“It’s generally thought that the
regulation dealt with things like
magazines and newspapers, but
actually it’s quite a broad section
that also deals with electronic
form. As a result, if organizations
are using information that some-
one put on a publication, even
their own publication, because
they intended to publish that
information, that could be
accessible under the exceptions
for collection and use in
PIPEDA.”
While asserting that it is
“quite clear” that information
obtained from social media that
is searchable and widely avail-
able on the
Internet can be
used by insur-
ance companies
“as they deem
appropriate,”
Fazila Nurani
believes that
insurers never-
theless must be
Nurani
Kaufman
SEBASTIAN CZAPNIK / DREAMSTIME.COM
transparent about it. The founder
of privacy management consulting firm PrivaTech Consulting
says that if insurance companies
use that information to evaluate
an individual’s premiums or
determine whether the person is
insurable, then the insurer must
take “reasonable steps” to notify
individuals that they are conducting such practices.
Consent is another issue
insurers would likely have to
grapple with, said Daniel Michaluk, chair of
the information and privacy practice
group at Hicks
Morley Hamilton Stewart
Storie LLP in
Toronto. Aside
from the fact
that the information published
by an individual may not be
reliable, Michaluk believes that
obtaining consent could prove
to be a major barrier for insurers who are exploring the so-called predictive modeling, a
new system based partly on
consumer online marketing
data to profile clients or prospective clients.
“The consent question is
major,” said Michaluk. “If you
have to get consent, you’ve got a
problem because you’re not get-
ting consent to a record that’s
held by a third party. You’re get-
ting consent that is held by, and
maybe manipulated, by the indi-
vidual whose information you
are seeking. I don’t think the
process works if you have to put
people on notice.”
Insurers would also likely have
to demonstrate that the collec-
tion and use of the personal
information would have reason-
able purposes, added Michaluk —
Michaluk
not an easy feat. Under PIPEDA,
consent cannot be a condition for
providing a service unless the collection or use of the information
is required to provide the services, says Michaluk. “Insurers who
are considering predictive modeling ought to ensure that they
are prepared to address the validity of the model to a privacy regulator,” said Michaluk.
The manner in which the
information was gathered will
also likely be relevant. U.S.
insurers are using third-party
data aggregators to obtain a
treasure trove of information on
individuals. That in itself is not a
problem. It can be problematic if
the data obtained by data-collec-tion firms identifies individuals,
said Nurani.
“PIPEDA only applies to personally identifiable information,”
explained Nurani, who worked
with the OPC before founding
PrivaTech Consulting. “If the
data is well-anonymized, [and]
there’s no possibility to re-iden-tify the individual, or if it is an
aggregate form so that a specific
individual is not identifiable, that
information could be collected,
used, disclosed or retained
indefinitely. It’s not subject to the
privacy laws because it is not
about an identifiable individual.”
The trend toward using online
data to make decisions about
individuals underscores the need
for consumers to understand how
their data is being shared, say
legal observers.
“Individuals who publish
their personal information on
social media such as Facebook,
Twitter or their own blogs have
to understand that they need to
control their personal information they put out, because they
could be accessed by third parties,” said Kaufman. n
