The World Anti-Doping Agency ('WADA') adopted the International Standard for the Protection of Privacy and Personal Information in May 2009 to address concerns about the treatment of sensitive athlete information. Today concerns over the adequacy of the protection of personal information legislation in Quebec have, according to reports, led to requests that WADA's headquarters be transferred from Quebec to Europe. To address such concerns Canada's federal government is seeking to extend the applicability of its federal data protection law to WADA as Macdonald Allen of WeirFoulds LLP explains.
WADA collects a significant amount of data from athletes around the world. WADA's coordinated enforcement initiatives often require transferring data between different jurisdictions. Among WADA's initiatives that impact athlete privacy are its data management database called ADAMS, its 'whereabouts' rules with respect to an athlete's location information for random testing, and an athlete's biological passport.
To address mounting concerns over its treatment of sensitive and personal athlete information, WADA adopted the International Standard for the Protection of Privacy and Personal Information ('ISPPPI') in May 2009. The ISPPPI came into force on 1 June 20091. On 1 January 2015, certain revisions to the ISPPPI came into effect. From the ISPPPI's preamble, its main purpose 'is to ensure that organizations and persons involved in anti-doping in sport apply appropriate, sufficient and effective privacy protections to Personal Information that they process, regardless of whether this is also required by applicable laws2. The ISPPPI establishes a minimum set of rules to protect the personal information of athletes.
WADA was established in 1999 in Lausanne, Switzerland. In April 2002, WADA moved its headquarters to Montreal, Quebec, in Canada3. WADA warns that it will collect and store personal information in Canada and/or Switzerland. WADA's online privacy policy issues a warning that 'both Switzerland and, to a more limited extent, Canada, have been deemed by the European Commission to be jurisdictions that provide adequate levels of legal protection for privacy. While Quebec offers an equivalent level of protection, no such formal decision has been taken4.
In Canada, privacy and protection of information law is regulated by federal and provincial statutes. One of the reasons that the Canadian federal law on data protection, the Personal Information and Protection of Electronic Documents Act5 ('PIPEDA'), was established was to 'create a vehicle for Canada to provide a level of protection for personal information that would facilitate the flow of personal information from [European Union] member states to Canada6. PIPEDA was declared as providing an adequate level of protection by the European Commission on 20 December 20017.
During the preparation of the ISPPPI, a WADA expert group specifically took into account a number of international privacy rules and standards, including but not limited to, Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the processing of personal data and on the free movement of such data8.
On 4 June 2014, an independent European advisory body (the 'Working Party') established under Article 29 of Directive 95/46/EC on data protection and privacy prepared an opinion on the protection of personal data in Quebec. The adequacy of the data protection legislation in force in Quebec referred to Articles 35 to 41 of the Civil Code of Quebec9 and the Act Respecting the Protection of Personal Information in the Private Sector10. Among other things, the Working Party considered that the Canadian federal and provincial opinions on the scope of the application of the Quebec legislation to both interprovincial and international transfers of personal information did not coincide. The Canadian federal privacy commissioner was of the view that PIPEDA applied to interprovincial or provincial transfers of personal information, while the Quebec provincial Commission d'Accès a l'information ('CAI') considered that in the case of interprovincial and international transactions, both the federal and provincial legislation applied11. The Working Party considered that 'it was necessary to clarify the territorial scope of the Quebec Act before any decision on its adequacy is taken by the European Commission12. As of the writing of this article, Quebec's provincial legislation has not received an adequacy decision by the European Commission.
Under Article 8.2 of the ISPPPI, Anti-Doping Organisations (as defined in the ISPPPI) shall not disclose Personal Information (as defined in the ISPPPI) to other Anti-Doping Organisations where there is evidence that the recipient Anti-Doping Organisation does not or cannot comply with the ISPPPI. Where there are concerns that another Anti-Doping Organisation is incapable of complying with the ISPPPI, those concerns shall be made known to the Anti-Doping Organisation and WADA as soon as possible13. Concerns over the adequacy of the provincial protection of information legislation in Quebec have apparently led to requests that WADA's headquarters be transferred to Europe14.
To address such concerns, the Canadian federal government's omnibus budget bill, the Economic Action Plan 2015 Act15 ('Bill C-59'), seeks to amend PIPEDA16. In Division 13 of Bill C-59, PIPEDA is amended by specifically making the federal legislation applicable to organisations set out in a new schedule to the act. At this time, the only organisation included in the new schedule is WADA. As noted in the Senate Standing Committee's report on the content of Bill C-59, 'the proposed amendments to PIPEDA would expand the potential application of the law beyond federal works, undertakings and businesses and the commercial activities of private-sector organizations to include any organization that is added to Schedule 4 with respect to the personal information set out in that Schedule17. The amendments to PIPEDA establish a precedent to broaden the scope of PIPEDA to include organisations that are not federal works, undertakings or businesses, or otherwise engaged in commercial activities18.
It is unclear what effect this amendment will have on WADA's operations. In its written submission to the Standing Committee on National Finance, the Privacy Commissioner of Canada noted that 'the extension of PIPEDA's application to WADA [...] will not remove the application of substantially similar Quebec privacy law as it applies to collections, uses and disclosures of personal information within the Province of Quebec.'19 Quebec's provincial legislation was deemed substantially similar to PIPEDA in December 200320. Global organisations such as WADA, which transfer data within provincial, national and international borders, often adopt privacy compliance measures that meet the strictest legislative requirements in whichever jurisdiction they operate. On that basis, WADA's operations likely satisfy the requirements of both Canada's federal and provincial protection of information legislation but may expose the organisation to complaints under each regulatory regime.
The real effect of the amendments to PIPEDA may be to the judicial analysis of Canada's division of powers and inter-jurisdictional immunity with respect to privacy and protection of information legislation due to questions about the amendment's constitutional validity21.
The article 'Protecting athlete privacy: alleged concerns in Quebec' was first published in World Sports Law Report. Please click here to access the article.
Footnotes
1 World Anti-Doping Agency, 'International Standard for the Protection of Privacy and Personal Information,' https://www.wada-ama.org/en/resources/data-protection/international-standard-for-the-protection-of-privacy-and-personal
2 Ibid.
3 World Anti-Doping Agency, 'Contact Us,' https://www.wada-ama.org/en/contact-us/regional-offices
4 Ibid.
5 Personal Information and Protection of Electronic Documents Act, SC 2000, C 5.
6 Office of the Privacy Commissioner of Canada, 'The Case for Reforming the Personal Information Protection and Electronic Documents Act,' May 2013, https://www.priv.gc.ca/parl/2013/pipeda_r_201305_e.asp#_ftn19
7 Article 29 Data Protection Working Party, 'Opinion 7/2014 on the protection of personal data in Quebec' (4 June 2014), http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2014/wp219_en.pdf
8 Supra note 1, Preamble.
9 Civil Code of Quebec, CQLR c C-1991.
10 An Act Respecting the Protection of Personal Information of Personal Information in the Private Sector, CQLR c P-39.1 (the 'Quebec Act').
11 Supra note 7 at p 4.
12 Ibid.
13 Supra note 1, at Article 8.2.
14 Michael Geist, 'How Bill C-59 Reshapes Canadian Privacy Law,' 15 June 2015, http://www.michaelgeist.ca/2015/06/how-bill-c-59-reshapes-canadian-privacy-law/; also see Allison Lampert, 'Canada will act to keep doping agency in Montreal,' 20 April 2015, Reuters, http://ca.reuters.com/article/sportsNews/idCAKBN0NB2CJ20150420
15 Canada, Bill C-59, Economic Action Plan 2015 Act, 2nd Sess, 41st Parl, 2015.
16 Senate Standing Committee on National Finance, 'Report on the Subject Matter of Bill C-59,' Twenty-Second Report, June 2015, at page 25, http://www.parl.gc.ca/sencommitteebusiness/CommitteeReports.aspx?Language=e&Parl=41&Ses=2&comm_id=1013
17 Ibid.
18 Letter from Privacy Commissioner of Canada to Standing Senate Committee on National Finance (1 June 2015), http://www.parl.gc.ca/Content/HOC/Committee/412/FINA/WebDoc/WD7992837/412_FINA_C-59_Briefs%5COfficeOfThePrivacyCommissionerOfCanada-e.pdf
19 Ibid.
20 Privacy Commissioner of Canada, Learning From a Decade of Experience: Quebec's Private Sector Privacy Act (Montreal: Government of Canada) at page 4, https://www.priv.gc.ca/information/pub/dec_050816_e.pdf
21 Supra note 14.
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