Skip to main content
This website uses cookies. By continuing to use this website you are agreeing to our use of cookies as described in our privacy policy.
Bulletin

Political Parties And The Personal Information Of Electors: New But Incomplete Protections

Fasken
Reading Time 6 minute read
Subscribe

Bulletin #21 | Special Series - Bill 64 & the act to modernize legislative provisions as regards the protection of personal information

Today, we are providing an overview of the changes proposed in Bill 64 (the "Bill") as they pertain to the management of Quebec electors' personal information.

In the European Union, New Zealand and British Columbia, political parties are subject to legislation governing the protection of personal information. In Quebec, despite the proposal in the Bill to add a new Title III.1 entitled Protection of the Personal Information of Electors[1] to the Election Act,[2] few new obligations would be imposed on political parties with regard to protecting the sensitive data with which they are entrusted.

Background

Currently, unlike in British Columbia, there is no legal framework for political parties in Quebec governing the management of the personal information they possess.[3]

Technology enabling the microtargeting of individuals has been rapidly adopted by political parties.[4] The threat to election integrity in democracies around the world became manifest in 2015 with the Cambridge Analytica matter, in which the company collected data from millions of Internet users in multiple countries (including Canada) without their consent or knowledge. It did so in order to analyze this information for political and electoral purposes. The resulting data was sold to various political actors, who used it to fine-tune their electoral strategies.[5]

Consequently, Canadian authorities tasked with privacy protection in multiple jurisdictions stressed the urgent need to reform existing laws to ensure adequate protection of electors' personal information.[6] In British Columbia, an extensive inquiry into the practices of political parties resulted in recommendations from the Information & Privacy Commissioner,[7] who concluded that British Columbia's electoral laws also applied to federal parties present in the province.[8] However, at the time of writing, this matter has yet to be decided upon by the courts.

Bill 64: Some new rights for Quebec electors

The Bill proposes to extend the protection of personal information with regard to the collection, use and communication of such information by political parties. However, these new rights are highly limited and do not match the requirements imposed on businesses and public bodies in Quebec. Rather, a special framework has been created, one that only applies to entities authorized[9] by the Chief Electoral Officer, including political parties:

PROTECTION OF THE PERSONAL INFORMATION OF ELECTORS

127.22. Subject to any provision that is inconsistent with this Act, the Act respecting the protection of personal information in the private sector (chapter P-39.1), except sections 4, 5, 12 and 23, applies to the personal information of electors held by an authorized entity.

[…]

127.24. A person may not have personal information concerning him deleted if the information comes from the list of electors.

Nor may he have personal information concerning him deleted if that information is necessary for the authorized entity to respect his refusal to receive any communication from that entity.

These authorized entities can only collect information that is necessary for electoral or political financing purposes. In addition, these authorized entities may not collect or use personal information without the consent of the person in question.[10] Moreover, an elector cannot request the deletion of personal information that comes from the list of electors or that the authorized entity needs in order to respect a refusal to receive any communication from the entity.[11]

In the opinion of the Chief Electoral Officer of Quebec (the "Officer"), this Bill is much too limited.[12] The Officer's primary critiques relate to the fact that sections 4, 5, 12 and 23 of the Act respecting the protection of personal information in the private sector would still not apply to authorized entities.[13] The following are some of the issues raised by the Officer:

  • Political parties possess sensitive personal information on several categories of people, including actual and potential candidates, party members, volunteers, and party employees. These individuals may not appear on the list of electors provided to parties three times a year by Élections Québec.
  • The obligations in the Bill do not apply to municipal political parties or independent candidates, even though they receive a copy of the list of electors.
  • Unlike in New Zealand, the United Kingdom and British Columbia, Quebec is proposing the creation of a separate legal framework for political parties.[14] The requirements to determine purpose and the collection of personal information, the limitation of collection to necessary information only, and the limit on use would be replaced by the principle of necessity for electoral or political financing purposes. Furthermore, political parties possess a great deal of information that comes from persons other than electors.
  • It is unclear what constitutes valid consent and whether consent is required anew for the information to be used for a different political purpose at a later date.
  • Political parties are exempt from the obligation to destroy personal information when the purpose of collection or use has concluded.
  • As a result, the Commission d'accès à l'information du Québec cannot fully exercise its role with regard to political parties.

Conclusion

The recommendations of the Officer are particularly salient when one considers that elsewhere in Canada, birth date and sex do not appear on lists of electors sent to holders of political office, candidates, and political parties.[15]

Even though candidates would only receive a copy of the list of electors after having made a commitment in writing to preserve its confidentiality,[16] and although fines would be multiplied by ten, the fact remains that political parties in Quebec keep an astounding quantity of sensitive information with relatively few restrictions. Despite the solidly established principle in Canadian Law that political speech is protected by freedom of expression,[17] one must ask whether a just balance has been achieved in this instance. However, we are certainly witnessing a step in the right direction.

 

BILL 64 RESOURCE CENTER Visit our Bill 64 Resource Center for all the information you need to help you to cope with the changes that might be made to the legislation. 

DISTRIBUTION LIST If you do not want to miss our next bulletins and any other relevant information on this subject, sign up now on our distribution list to receive all communications related to this new Bill. 

 


[1]      Bill, Section 81.

[2]      CQLR c E-3.3.

[3]      Colin J. Bennett, Department of Political Science, University of Victoria, B.C., Canadian Federal Political Parties and Personal Privacy Protection: A Comparative Analysis, Officer of the Privacy Commissioner of Canada, March 2012.

[4]      Susan Delacourt, Shopping for Votes: How Politicians Choose Us and We Choose Them, Douglas &McIntyre, 2013.

[5]      Colin J. Bennett, Department of Political Science, University of Victoria, B.C., Canadian Federal Political Parties and Personal Privacy Protection: A Comparative Analysis, Officer of the Privacy Commissioner of Canada, March 2012.

[6]      Mémoire du Directeur général des Élections sur le Projet de loi 64, September 22, 2020.

[7]      Office of the Information & Privacy Commissioner for British Columbia, Investigation Report P19-03/ PIPEDA-035913.

[8]      Courtenay-Alberni Riding Association of the New Democratic Party of Canada, Michael McEvoy, Information and Privacy Commissioner for British Columbia, Order P19-02, August 28, 2019.

[9]      Under section 41 of the Election Act, an authorized entity is "[e]very political party, party authority, independent Member or independent candidate wishing to solicit or collect contributions or to incur expenses or contract loans" that is authorized by the Chief Electoral Officer in accordance with chapter I of the Election Act.

[10]     Bill, Section 127.23.

[11]     Bill, Section 127.4.

[12]     Mémoire du Directeur général des Élections sur le Projet de loi 64, September 22, 2020 ("White Paper").

[13]     Bill, Section 127.22.

[14]     Information Commissioner's Office, Investigation into the use of data analytics in political campaigns, November 6, 2018.

[15]     White Paper, p. 20.

[16]     Bill, Section 82.

[17]     Prud'homme v. Prud'homme, 2002 SCC 85, par. 41.

    Subscribe

    Receive email updates from our team

    Subscribe