The Privacy and Access to Information Law Section of the Canadian Bar Association offers suggestions (available in French only; all quotations taken from the submission are translations) regarding the consent guidelines of the Commission d’accès à l’information du Québec (CAI).
Among the CBA Section’s suggestions, the guidelines should “include a comprehensive section on exceptions to consent, to enable subject organizations to understand when an exception applies and when consent is required, in order to make an informed decision about their practices (failing that, supplementary guidelines on this topic should be drafted).”
In addition, it is suggested that the Commission look more closely at the issue of implied consent and clarify the interaction between consent requirements and management rights in an employment context, given the special status of Quebec law, which does not include an exception similar to that of other Canadian jurisdictions in this area. The examples provided are insufficient to ensure a proper understanding.
But what emerges above all from the CBA Section’s comments is a concern about the CAI’s restrictive interpretation of the criteria for valid consent and the adverse effects this could have on the concerned organizations and individuals.
“The CBA Section understands and shares the CAI’s concern to ensure that organizations are transparent about their personal information protection practices and that the individuals concerned give informed consent in this regard. However, the solution does not lie in inundating individuals with ‘micro-requests’ for consent.”
Such a practice could lead to “consent fatigue” and cause individuals to agree wholesale in order to get rid of consent requests perceived as irritants.
“By focusing on a form of consent that is too granular with respect to privacy issues, it is possible to impose a heavy burden on the consumer and even divert their attention from other equally important disclosures in lengthy forms that will not serve the consumer’s interests,” the CBA section concludes.