Contact tracing apps have been identified as a potentially important part of the response to COVID-19 and are now being developed in many jurisdictions, through both public and private initiatives. For example, Singapore has already deployed a contact tracing app and Alberta Health Services is using a similar app, tweaked for their use. Likewise, it has been widely reported that Apple and Google are working together to develop a contact tracing app and the media has covered contact tracing apps in Canada as well (for instance, here, here, here and here). As Dr. Bonny Henry (BC’s chief medical officer) recently joked: “Everybody and their dog has an app out right now”.
Previous Dentons Data blog post have explained the application of privacy laws during this pandemic (see here and here) – hint: they still apply. This post builds on that and addresses the privacy litigation risks associated with any failures to comply with these laws, even – and especially – during this pandemic. We ask: What does COVID 19 mean from a privacy litigation risk perspective, and what can companies do to mitigate that risk?
The Litigation Landscape: Where were we before COVID-19?
Following the Court of Appeal for Ontario’s 2012 decision in Jones v. Tsige, establishing the tort of intrusion upon seclusion, there has been a proliferation of class actions relating to alleged privacy breaches.
British Columbia has temporarily modified its Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c.165 (“FIPPA“) to lift a requirement that personal information handled by public sector agencies, and service providers to those public sector agencies, be kept in Canada.
Under the Order, made on March 26, 2020, “health care bodies”, the Province and certain provincial health-related authorities and ministries may now disclose personal information inside or outside of Canada in accordance with s. 33.2(a) and (c) of FIPPA on the condition that the disclosure is necessary:
a. for the purposes of communicating with individuals respecting COVID-19,