Protecting your privacy: it’s our business
In the usual course of real estate transactions, REALTORS® may require personal and property information from buyers and sellers. Some of this information may be considered private. Collecting and sharing this information is an essential part of the buying and selling process. At the same time, few things are more important to individuals than their privacy. REALTORS® recognize the rights of buyers and sellers to protect and control the use of their personal information. REALTORS® are committed to using fair information practices when dealing with your personal information. This web site explains what we do with your information and how you control it. If you have any questions, speak to your REALTOR® or contact your local real estate Board or your provincial real estate Association.
PRIVACY CODE
REALTORS® abide by the Privacy Code of The Canadian Real Estate Association. This Code sets out the commitment of REALTORS® and your rights regarding the privacy of your personal information. We will:
- Obtain your consent when we collect, use or disclose your personal information.
- Only use the information for the purposes we discussed with you.
- Allow you access to your information.
- Have privacy policies that are clear and understandable.
1. What is the purpose of PIPEDA?
The purpose of the Personal Information Protection and Electronic Documents Act (PIPEDA) is to provide Canadians with the right of privacy with respect to their personal information that is collected, used or disclosed by an organization in the private sector.
2. What is “personal information”?
Personal information is defined as “information about an identifiable individual”. This definition is, for all intents and purposes, all encompassing and includes such things as a person’s race, age, marital status, education, medical, criminal, employment or financial history, address, telephone number and details about real and personal property ownership.
3. How is personal information protected?
All organizations collecting personal information will be required to put in place policies and procedures which give effect to the 10 principles of privacy which are set out in Schedule 1 to PIPEDA.
4. Where do these principles come from and how do they work?
The 10 privacy principles are based on the “Model Code for the Protection of Personal Information”, which was developed by the Canadian Standards Association in 1996. This Model Code was formulated based on extensive input from the business sector and was intended to establish guidelines that protected information, while at the same time being business-friendly.
5. Are there any exceptions?
PIPEDA does provide for a few exceptions to the general requirement of obtaining an individual’s consent. Some groups, such as law enforcement agencies and journalists, have a lawful or investigative need to collect, use and disclose personal information without having to obtain the consent of concerned individuals. For these reasons, some of the exemptions include:
- personal information collected solely for journalistic, artistic or literary purposes.
- if the action clearly benefits the individual or if obtaining permission could infringe on the information’s accuracy.
- where such data can contribute to a legal investigation or aid in an emergency where peoples’ lives or safety can be at stake.
- if disclosure aids come in times of emergency, matters of legal investigation, or facilitates the conservation of historically important records.
6. When, and to what industries will PIPEDA apply?
PIPEDA will eventually apply to every organization that collects, uses or discloses personal information in the course of commercial activity. “Commercial activity” is any activity that is of a commercial character and certainly includes the real estate industry. An “organization” is a company, association, a partnership or a person.
To encourage harmonization of provincial and federal privacy protection laws, the Bill adopted a phase-in approach. Effective January 1st 2001, the legislation applied to federally regulated private sector companies, including telecommunication, broadcasting, banking and inter-provincial transportation. It also applies to federal crown corporations operating in these areas such as Atomic Energy of Canada Limited, the Canadian Broadcasting Corporation and so on.
The provisions of the legislation also applied, at that time, to trade in personal information that occurs inter-provincially or internationally.
The provisions were applied more broadly to all personal information collected, used or disclosed in the course of commercial activities as of January 1st 2004. If, however, a province passes a law that is substantially similar to PIPEDA, the organization’s activities covered by the provincial law will be exempted from the federal law. As of January 1st 2006, British Columbia, Alberta, Ontario and Quebec have substantially similar legislation.
7. If provinces are going to pass their own privacy laws, with the result that PIPEDA will not apply, why are we making all these efforts to comply with PIPEDA?
While federal/provincial jurisdictional questions are going to result in some interesting times, there are at least four reasons why it is important to understand and comply with PIPEDA now.
Firstly, all provinces may not pass their own legislation. PIPEDA will remain the governing legislation in those jurisdictions.
Secondly, the intent of the federal regulators is to ensure that provinces adopt basic harmonized rules for the protection of personal information. Only legislation which is “substantially similar” to PIPEDA will exempt the province. It is apparent that to be “substantially similar” legislation will have to be based on the same 10 principles as PIPEDA.
Thirdly, CREA’s Privacy Code, which is the national standard in organized real estate and is based on PIPEDA, is effective now.
Fourthly, with privacy having been identified as a key factor in consumer decision making, most businesses are encouraged to act sooner rather than later in establishing privacy policies.
8. What happens to the personal information my firm/Board already has?
The personal information currently held by a REALTOR® organization would not be exempt. Therefore organizations must ensure that the information already collected meets the requirements of the Act and has been collected accordingly. In other words:
existing information can continue to be used without anything more, as long as the use is consistent with the purpose for which it was collected in the first place; and
any secondary use for which consent was not obtained would offend the Act.
As an example, you collected personal information from a client a number of years ago when you listed their house. You subsequently put their name on a mailing list and continue to send them promotional and marketing materials. If you told them at the time you were doing this, and they agreed, you can continue to do so. If you did not identify this use when you collected the information, you cannot continue to maintain the mailing list without now obtaining the consent of the persons on it.
9. So if I maintain a mailing list of former clients and I didn’t get consent at the time, do I have to contact each person and get them to positively consent to being left on the list?
No. Both PIPEDA and the Privacy Code recognize the concept of “negative option consent”. You can send everyone on the list a notice that they are on the list and here’s what you use it for. The notice must provide that if the person wishes to be removed from the list, he or she can indicate so on the notice (or by some other means) and return it to you. If no such notification is received by you, consent is deemed to have been given.
10. What happens to the personal information my firm holds in case of a sale or acquisition by another organization?
Unless you have indicated otherwise when collecting the information, the information can be used by the acquiring company as long as it used for the same purpose for which it was collected.