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 2009. 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 laws. The ISPPPI establishes a minimum set of rules to protect the personal information of athletes.
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 Act (‘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 Canada. PIPEDA was declared as providing an adequate level of protection by the European Commission on 20 December 2001.
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 data.
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 Quebec and the Act Respecting the Protection of Personal Information in the Private Sector. 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 applied. 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 Commission. 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 possible. 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 Europe.
To address such concerns, the Canadian federal government's omnibus budget bill, the Economic Action Plan 2015 Act (‘Bill C-59'), seeks to amend PIPEDA. 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 Schedule. 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 activities.
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.' Quebec's provincial legislation was deemed substantially similar to PIPEDA in December 2003. 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 validity.
The article ‘Protecting athlete privacy: alleged concerns in Quebec' was first published in World Sports Law Report. Please click here to access the article.