The Québec Charter and the Civil Code prohibit the invasion of a person's privacy or violation of his or her reputation. These provisions are completed by An Act Respecting the Protection of Personal Information in the Private Sector ("Private Sector Act"), which applies to all private enterprises which, directly or indirectly, gather, hold, use or communicate personal information.
Under the Private Sector Act, a person (e.g. an employer) collecting personal information for the purpose of establishing a file on another person or entering information in such a file can collect only information that is necessary to attain the object of the file. No information can be collected from any person other than the person concerned, unless that person consents to collection from a third person, unless the law so authorizes, or unless, in certain circumstances, the person collecting the information has a serious and legitimate reason for collecting it from a third person.
Persons operating an enterprise are required by the Private Sector Act to ensure that any personal information on others that they hold or use remains confidential. Communication of the information to third persons without the consent of the person concerned is forbidden, except in exceptional cases set out in the Private Sector Act. The Private Sector Act authorizes, in certain circumstances, the communication of a "nominative list" (i.e. containing names, addresses and telephone numbers) for purposes of commercial or philanthropic prospection, subject to the right of each person on the list to require that information concerning him or her be deleted from the list. The use of personal information for purposes that are not relevant to the object of the file in which it is kept is prohibited, except with the consent of the person concerned.
In order to be valid, the consent to the communication or use of personal information must be manifest, free, enlightened and given for specific purposes. Consent is valid only for the length of time necessary to achieve the purposes for which it was requested.
The Private Sector Act establishes the conditions and procedure according to which a person may consult and rectify a file established on him by a person operating an enterprise. It is possible for any interested person to submit a request for the examination of a disagreement to the Commission d'accès à l'information ("Access to Information Board") in relation to the application of a legislative provision concerning access to, or rectification of, personal information, or that person's right to have personal information concerning him deleted from a nominative list. The Access to Information Board's decision in such matters is final as to issues of fact, but may be appealed from to the Court of Québec on issues of law or jurisdiction.
The Access to Information Board, on its own initiative or following a complaint from an interested person, has the power to inquire into, or entrust another person with inquiring into, any matter relating to the protection of personal information and the methods used by a person operating an enterprise and who collects, holds or uses personal information or communicates it to third persons. Following an inquiry, the Access to Information Board has the power to recommend or order the application of remedial measures to ensure the protection of personal information. The order may be appealed by a person having a direct interest in the matter.
The Private Sector Act establishes specific rules with respect to personal information agents who establish files on other persons on a commercial basis and prepare and communicate credit reports to third persons. Such agents are required to register with the Access to Information Board and make their activities known to the public by means of notices published periodically in the press.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
