On November 11, 2020, the collaborative efforts of Osgoode Hall's Health Law Association, Privacy Law Society, and Constitutional Law Society helped to host the "Balancing Privacy and Public Health During COVID-19" panel. The panel featured prominent lawyers and academics who spoke on the intersection of health law and privacy law and featured discussions about various topics concerning the ongoing pandemic. Paradoxically, while the implications of the COVID-19 pandemic continually force Canadians to socially isolate to help reduce the virus' transmission, data-sharing and compiling private information may be necessary for us to truly slow its effects.

Public Health vs. Civil Liberties

When asked, which aspect of health law or privacy law is most relevant during the COVID-19 pandemic, lawyer and associate professor Ian Stedman first cautioned the panel before answering the question directly. He explained that a systematic assessment and balance between public health and the private interests of Canadians must be achieved before aspects of the law can intervene. For example, the provincial government has required restaurants to collect personal information from all its guests for contact-tracing purposes surrounding COVID-19. What is troubling is that no one is aware of the extent to which the data is collected, as it varies from restaurant to restaurant. Moreover, no one is made aware of what happens with this personal information once it is collected.

The pandemic's implications for privacy laws exist on both the federal and provincial levels. The Privacy Act operates at the national level and serves to protect the privacy of Canadians with respect to personal information about themselves held by government institutions.

Similarly, the Personal Information Protection and Electronic Documents Act (PIPEDA) is a piece of federal legislation that requires organizations to obtain consent when they collect, use or disclose someone's personal information.

Together, the Privacy Act and PIPEDA must work in conjunction with Ontario's Personal Health Information Protection Act to govern the use and disclosure of individual personal health information. If we were to refer back to Ontario's restaurants, for example, or any establishment for that matter, where should we draw the line as to which information can be collected? One establishment might opt to only collect the names, and phone numbers of its guests, whereas another, may take a step further and request that their guests provide as much as a home address. This is just one of many conflicting balances to which Ian Stedman referred.

COVID Alert exposure Application

The panel's discussion centred around the usage, effectiveness and privacy concerns surrounding the federal government's COVID Alert application. While offered for all smartphones, COVID Alert is Canada's free exposure notification app that can let other app users know of possible exposures before any symptoms appear. When asked about the privacy implications of this application, partner and co-founder of INQ Data Law, Carole Piovesan, expressed little concerns about privacy infringements and explained that the public's more considerable concern should focus on who's not using the application.

Dr. Andrea Slain agreed with Ms. Piovesan and emphasized that the app possesses no real privacy concerns. Instead, both Dr. Slain and Carole outlined the app's real issue being its requirement for users to take the initiative and input their own personal information — including positive COVID-19 test results. The paradoxical nature of tackling this pandemic evidently stems from the volatility of the COVID Alert application and its requirement for users to consolidate — rather than segregate — their personal info.

Further, each panelist explained that after surpassing the obstacle of having Canadians download and actually use the COVID Alert app, it has to be free of technological glitches altogether to assist in reducing transmission. While the application is far from perfect, contact tracing technology seems to be the preferred method of surveillance in several other jurisdictions as well.

While international governments attempt to automate labour intensive tasks critical to containing the spread of COVID-19, we have become witnesses to what I find to be a paradoxical struggle of balancing privacy interests and civil liberties.

Written by Khristoff Browning. Khristoff is a first year JD candidate at Osgoode Hall Law School. He is a first year representative for the Osgoode Health Law Association (OHLA), contributing IPilogue editor and IP Innovation Clinic Fellow.