In response to the Consultation on the Future of Competition Policy in Canada the Privacy Commissioner of Canada recommended two amendments be made to the Competition Act: (i) the Office of the Privacy Commissioner and the Competition Bureau should be legislatively authorized to collaborate on investigations and other compliance matters; and (ii) the Competition Act should define and prohibit dark patterns that harm competition.
Background
As a public advocate for the privacy rights of Canadians, the Privacy Commissioner of Canada (the "Privacy Commissioner") contributes written submissions to consultation processes of other government organizations. On March 20th, 2023, the Privacy Commissioner provided the Minister of Innovation, Science and Economic Development Canada ("ISED") with recommendations in response to the consultation on the future of competition policy in Canada (the "Consultation") to highlight the growing intersection between privacy and competition and how changes to competition legislation may have effects on Canadians privacy.
The Consultation was launched in November 2022 to hear Canadians' views on broader changes to Canadian competition legislation. The Consultation was initiated after significant amendments to the Competition Act came into force in June 2022 by way of an omnibus bill, Budget Implementation Act, 2022, No 1. The details of these legislative amendments are summarized in our colleagues' blog post.
Including significant amendments to the Competition Act in a budget bill meant that no input from outside stakeholders was considered during the legislative process. Many in the Canadian competition community criticized this approach, and the Privacy Commissioner hinted at his similar disapproval stating that he "look[s] forward to providing [his] advice to Parliament on these matters when I am invited to do so during Parliament's review of the proposed legislation".
Recommendations
The Privacy Commissioner's submission made two recommendations:
- To avoid regulatory overlap, support one another's mandates, surmount any potential issues that may arise in ensuring competitive markets while also protecting Canadian citizens' privacy rights and deliver results for the public in an increasingly complex regulatory environment, he Office of the Privacy Commissioner of Canada (the "OPC") and the Competition Bureau (the "Bureau") should be legislatively authorized to collaborate on investigations, inquiries or other formal compliance matters.
- Acknowledging that there are other risks affecting both privacy and competition in the digital economy, legislation should look to further define and prohibit dark patterns that affect the marketplace, comparable with other jurisdictions internationally, as a means of addressing both competition and privacy harms.
Greater Collaboration
In his submission the Privacy Commissioner acknowledged the increasing overlap in the areas of competition and privacy issues and advocated that this trend requires there to be "greater cooperation between the various privacy and competition agencies". The inclusion of privacy as a non-price factor of competition analysis acknowledges how in the digital environment, consumers of a "free" service may be "paying" through their personal or behavioural data.
Currently, the OPC is not able to formally collaborate with the Bureau in investigations or share relevant information. In his submission, the Privacy Commissioner notes that its 2016 investigation of the Ashley Madison privacy breach highlights the inconsistencies in the legislation on the issue of collaboration as the OPC was able to share information with the United States Federal Trade Commission that it would not have been allowed to share with the Bureau due to domestic statutory limitations. Referring to his 2021 submission to Senator Howard Wetston's consultation, the Privacy Commissioner noted that cross-regulatory collaboration between the Bureau and the OPC would "ensure a 'holistic and consistent approach to digital regulation to the benefit of competitive markets, consumer welfare, and the protection of privacy rights'". The Privacy Commissioner advocates that lack of collaboration between the OPC and the Bureau could result in conflicting regulatory decisions that promote competition at the expense of privacy or vice versa.
Defining Dark Patterns
The Privacy Commissioner's second recommendation is to define and prohibit dark patterns. Dark patterns are an emerging concept defined generally as design practices used in user interfaces that trick, manipulate or pressure users into making choices they would not otherwise have made. Dark patterns relate to privacy concerns where, for example, a design is used that "may make it easy for users to opt-in to privacy-intrusive settings while making it difficult to cancel the service or opt-out". While current Canadian privacy laws regulate dark patterns to a certain extent the Privacy Commissioner advocates for dark patterns to be explicitly defined in the Competition Act to "provide clarity and certainty on this concept and allow for robust enforcement". Canada's international counterparts are also paying attention to the role and impact of dark patterns. For example, in the United States the Federal Trade Commission issued a report on dark patterns and in the United Kingdom, the Competition and Markets Authority has issued two papers on dark patterns and the potential harm they cause.
Next Steps
The public submission period for the Consultation ended on March 31st, 2023. Now, ISED will review the submissions it received and publish information about the findings as well as next steps on the Consultation website.
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