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 dâaccĂšs Ă lâinformation du QuĂ©bec (CAI).
Among the CBA Sectionâs suggestions, the guidelines should âinclude 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).â
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 Sectionâs comments is a concern about the CAIâs restrictive interpretation of the criteria for valid consent and the adverse effects this could have on the concerned organizations and individuals.
âThe CBA Section understands and shares the CAIâs 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 âmicro-requestsâ for consent.â
Such a practice could lead to âconsent fatigueâ and cause individuals to agree wholesale in order to get rid of consent requests perceived as irritants.
âBy 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 consumerâs interests,â the CBA section concludes.