More rules when it comes to data, please

Former minister says Wild West isn’t best

As perhaps Canada’s most powerful lobby group, the Business Council of Canada (formerly known as the Canadian Council of Chief Executives) clearly has the best interests of big business at heart.

So why is former industry minister James Moore, who was hired by the council last week to produce a report on how to modernize Canada’s digital personal information policies, suggesting that more regulation could be the answer?

Perhaps because, as he says, a Wild West approach to data privacy hasn’t been working for anyone.

The Star talked to Moore, who is also a member of the Trudeau government’s NAFTA advisory council, about how to safeguard consumer privacy while at the same time supporting Canada’s ability to compete in a digital economy, where data contributes $1.7 trillion annually to the G7 alone. His report is due in late 2019.

Toronto Star: Is it possible to strike a balance between the profit goals of business and the need to better protect consumers? Is there not some tradeoff required?

James Moore: In some areas of intellectual property law, there is a sort of zero sum between the creator and the consumer, but in the data economy there is a balance and it’s actually in everybody’s interest to find the balance.

If the data economy is going to be what it needs to be — and if Canada is to compete — then informed consent with plain language is how you strike a balance so that data is being harvested only with consent. I think the role of government is to assure there is that balance.

We’ve come full circle from the early digital space land grab for quick consumer consent. That has shifted and now you see firms being very aggressive in reassuring consumers, saying, “Here’s what we will do with your information and here’s what we won’t do.”

It’s a massive opportunity for Canada and we just want to make sure that we get it right. This a non-partisan effort to draw forward good ideas and present them later this year to whoever forms the next government so they can put into place rules to protect consumers and give a clear path forward for modernizing our laws.

TS: So are you talking about explicit consent?

JM: Genuinely informed consent with plain language.

TS: There’s certainly a view that consumers need better protection in the fast-evolving digital world. What is the priority in your mind?

JM: I think there is a symbiosis here. Companies are not going to grow if consumers don’t feel protected. These things are not working at cross purposes, they are working in concert with each other. I think businesses realize that consumers vote with their wallets on these questions. It is a scarlet letter and a toxic death sentence for a firm if it is seen to have abused people’s data. Medium- and smaller-sized businesses have that same responsibility to consumers and a lot of learning has to happen since all of this is so new. We are coming from the perspective of the Business Council, but this idea originated with the members who said this is something that we need to act on because Canada has been a bit of a laggard.

TS: Then there’s a business case for better consumer privacy protections?

JM: There is concern that our legislation and policies aren’t keeping up with where consumers are going. If the government is on its toes, that will give Canadians confidence. The other side is outwardly — we want to send a message to people thinking of investing here that you are not going to be broadsided by a cataclysmic breach for which there is no policy remedy. I think it’s a perfectly reasonable proposal, for example, for the privacy commissioner to have a broader mandate and to have source data from the government about the state of the digital economy.

TS: Is there a role for government regulation in the area of data privacy?

JM: There could be. That’s part of the consultation. We’re going to talk to people who work with data and see what their experience is. It could well result in more meaningful regulation. It’s odd to hear from a former Conservative minister, but very often industry wants regulation because it provides structure and reassurance for the public. There is a deference to authority that exists in Canada and a presumption of best interest with regulation. Sometimes that gets abused and leads to overregulation and a dampening effect, but certainly in an area like this where the digital space has been a Wild West for a long time, some firms aspire to have clarity.

This interview has been edited and condensed.