During the past year, numerous events have focused public attention on the right to privacy. Editorials and headlines have paid considerable attention to a Supreme court ruling limiting the right to photograph individuals in public places, and to a lengthy legal battle between author Pierre Turgeon and the heirs of a prominent Quebec businessman over the deceased’s right to privacy

Burgess, Joanne

English

Dépôt de documents et de données de Érudit

Canadian Historical AssociationThe Right to Privacy in the Private Sector:What is at Stake for Historians and Historical ResearchDuring the past year, numerous events hâve focused public attention on the right to privacy. Editorials and headlines hâve paid considérable attention to a Suprême court ruling limiting the right to photograph individuals in public places, and to a lengthy legal battle between author Pierre Turgeon and the heirs of a prominent Quebec businessman over the deceased’s right to privacy. On another front, Industry Canada and the Quebec Department of Relations with Citizens and Immigration both embarked on a process of public consultation before intro- ducing new législation to regulate the protection of personal information in the private sector.These events are of considérable concern to Quebec historians who, because of their govemment’s pioneering efforts to protect privacy in the private sector, hâve learned to their dismay that measures intended to protect privacy can hâve unexpected and detrimental effects on historical practice. Their expérience in this matter may be of some use to historians elsewhere in Canada who will soon face privacy législation in the private sector.The Current Legislative FrameworkSince the early 1980s, fédéral and provincial govemments hâve enacted législation intended to enhance public accountability by providing access to information. At the same rime, many jurisdic- tions established measures intended to protect the privacy of individual citizens by regulating the collection, the use and the disclosure of personal information. Designed without concern for their impact on archivai holdings or historical research, their early législation was the object of sustained criticism by historians both in Québec and Canada. Through their efforts, some significant concessions were eventually achieved-{I} The récognition of both the legitimate concems of researchers and the héritage value of archivai holdings resulted in clauses limiting the right to privacy by permitting the disclosure of personal information without consent in certain circumstances.While the protection of privacy in the public sector was being progressively reinforced, the private sector remained virtually unregulated until the early 1990s. Since that rime the growth of information technologies, the ability of private enterprise and the state to amass vast personal data banks and the development of electronic commerce on a global scale hâve generated more systematic attempts to protect privacy in the private sector.Québec was the first Canadian province to legislate to protect privacy in the private sector with the Loi de protection des renseignements personnels dans le secteur privé in 1993. Intended to regulate the current practices of private enterprise (very broadly defined), the Québec privacy law had unintended effects on historical research because it impeded the development of access to archivai holdings. Furthermore, sectors of the law explicitly prohibited the disclosure of personal information (also very broadly defined) to third parties without the consent of the individual involved, except with the approval of the Access to Information Commission and only on condition that confiden- tiality be guaranteed.The extensive révision of the Quebec Civil Code in 1994 further strengthened the protection of privacy in the private sec­tor by regulating the behaviour of individuals and organizations not subject to existing législation. Articles 35 to 40 of the new Code establish an extremely broad définition of privacy and of what constitutes invasion of privacy. Article 3 5 states that “every person has a right to the respect of his réputation and privacy. No one may invade the privacy of a person without the consent of the person or his heirs unless authorized by law”. The right to privacy is thus transformed into an inheritance which may be transmitted to one’s heirs and continue to flourish after death.l^}The combined effects of the Loi de protection des renseignements personnels dans le secteur privé and the new Civil Code are potentially devastating to historical scholarship. Gaining access to personal information in most private sector archivai holdings is made into an onerous task subject to lengthy bureaucratie procedures and the unhappy knowledge that the personal information acquired cannot be made public. Even in instances where a donor allows full access to his personal records or those of his ancestors, he cannot lawfully authorize the access to or disclosure of any third party personal information.Fortunately, the Loi sur les archives spares private archivai records from many of these restrictions if they are held by the Québec National Archives or other public archivai services. In ail other instances however - private archivai services, the archives {1} For the concessions granted, see the fédéral Privacy Act as well as the relevant sections of Quebec’s Loi de protection des renseignements personnels dans le secteur privé and Loi des archives. However, the resulting législation is far from satisfactory, as Québec historians and archivists made abundantly clear in their présentations to the Cultural Affairs Committee of the Québec National Assembly in the fall of 1997.{2} For a more extensive discussion of the protection of privacy in the Québec civil code and its impact on historical research, see “Le Code civil et le respect du droit à la vie privée”, La Presse, February 3rd, 1998.Summer 1998 26Société historique du Canadaof companies and private institutions, personal holdings, muséums local history societies, etc. - measures designed to protect privacy take precedence over access to the past.Recent Initiatives in QuebecLast fall, the Québec government began a statutory five-year review of its access and privacy législation. Québec historians and archivists used this opportunity to request a sériés of amendments to allow business to transfer documents containing personal information to a recognized archivai service, to impose a time- limit on the requirement that consent be obtained prior to access to documents, and to permit the public disclosure of personal information for research purposes.On June llth, the provincial government tabled Bill 451 and with it a number of amendments responding to some of the concems raised by historians and archivists. A number of important changes to the Loi de protection des renseignements per­sonnels dans le secteur privé were announced; if adopted, these would permit businesses to provide third-party access to personal information, without requiring consent and without obtaining the approval of the Access to Information Commission. The unrestricted public disclosure of personal information would also be possible, provided 150 years had elapsed since the production of the document. While welcoming the récognition that the right to privacy is not etemal, the benchmark chosen is far from satisfactory. By maintaining the confidentiality rule for a vast quantity of the archivai material created since 1848, most of the history of modem Québec will be impoverished. That is why the Institut d’histoire de l’Amérique française will again plead its case in a new round of public hearings scheduled for early September; a written brief will hâve to be prepared during the summer.In OttawaWhile Québec has been fine-tuning its privacy législation, the fédéral government has been preparing its own proposai to protect privacy in the private sector. For a number of years, within the framework of the Uniform Law Conférence of Canada, fédéral and provincial officiais hâve been attempting to arrive at a cohérent, harmonized legal framework, modelled on the Québec expérience.P) The pressure to enact fédéral privacy législation has grown with recent developments in the field of electronic commerce. As a resuit, Industry Canada held public consultations last winter on the basis of a policy document entitled The Protection of Personal Information: Building Canada^ Information Economy and Society. A summary report outlining responses to the issues raised by Industry Canada was made public on June 19th, 1998; more substantive recommendations are expected shortly and législation will be tabled in the fall.{4}The fédéral proposai is of great concerné) for a number of reasons: it was developed without consulting Canadian historians and archivists, and without any regard for its potential impact on Canada’s cultural and héritage communities. Powerful lobbying efforts by privacy advocates raise fears that future législation will restrict access to the private archivai holdings (Manuscript groups) of the National Archives of Canada as well as other national héritage institutions and major économie institutions under fédéral jurisdiction. By preventing access to, and disclosure of, a wide range of personal information - from correspondence to photographs to administrative records - législation would curtail rights which Canadian historians, writers and journalists already enjoy. Privacy will be protected, but at what cost?ConclusionThe rapid pace of developments in this area, the complexity of the legal issues and the very pragmatic, short-term concems of politicians and policy makers no doubt explain why historians, archivists and représentatives of cultural and héritage groups hâve been virtually absent from recent debates about privacy. Yet the issues at stake are of fundamental importance to ail those who care about the préservation and promotion of our archivai héritage, and the practice of history. It is essential that historians under- stand these issues if they hope to convince their fellow citizens that it is important to attempt to reconcile the competing daims of privacy and memory.The Social Sciences and Humanities Fédération of Canada has created an ad hoc committee to monitor the évolution of the new Fédéral privacy initiative and to respond to future législation. We need your help! Please contact Joanne Burgess at jburgess@cyberus.ca or at burgess.joanne@uqam.ca.Joanne BurgessPresident, IHAF{3} A discussion paper released by the New Brunswick Department of Justice in May of this year is part of this ongoing process; see Privacy Discussion Paper 2.{4} The relevant fédéral documents can be consulted at Industry Canada’s website: http://strategis.gc.ca.{5} For a more detailed examination of these concems, see the brief submitted by the Institut d’histoire de l’Amérique française in response to Industry Canada’s consultation: http://www.cam.orga/~ihaf.27 Été 1998

The Right to Privacy in the Private Sector: What is at Stake for Historians and Historical Research

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The Right to Privacy in the Private Sector: What is at Stake for Historians and Historical Research

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