A Recent Privacy Complaint #409

A recent privacy case highlights the need to obtain consent before using an individual’s personal information. The Privacy Commissioner of Canada recently found that a licensee, in an advertisement, breached the federal Personal Information Protection and Electronic Documents Act (PIPEDA) by using personal information about two other REALTORS® without their consent.¹

What is PIPEDA?
PIPEDA is substantially similar to BC’s Personal Information Protection Act, which requires provincially regulated organizations, such as brokerages, to protect personal information. PIPEDA protects personal information collected, used or disclosed by federally regulated entities in the private sector. Before using someone else’s personal information, both statutes require an organization’s representatives to first obtain that person’s consent.

PIPEDA defines personal information, in part, as information about an identifiable individual, which includes any factual or subjective information about that individual (e.g., name, address, birth date, income, gender, religion, education, employment, etc.).² Apart from a few exceptions, PIPEDA prohibits using or disclosing this information without informed consent.³

The case
A representative wanted to advertise himself as a top-ranked REALTOR®. As a member of a real estate board, the licensee used the Multiple Listing Service® (MLS®) to get information about the listings and sales of other salespersons. Although the MLS® provided some data on the sales activities of other REALTORS®, it couldn’t rank representatives against one another. To rank the other REALTORS®, the licensee bought a report from an organization that sold real estate statistics. The report apparently ranked representatives by the number of units sold and dollar value. It contained each representative’s name, franchise name, number of units sold, each unit’s value, average time on the market and average sales price per representative.

Using the MLS® information and the ranking report as sources, the representative created an advertisement for his services, in which he ranked the top five REALTORS® in the area and listed the number of houses each had sold. Among the five, the licensee ranked himself first.

Two licensees named in the ad, ranked third and fifth, complained to the Commissioner that they hadn’t consented to their personal information being used.

According to the evidence, members of the real estate board signed an agreement to use the MLS® system. To the extent that MLS® information is associated with an individual, the board’s privacy policy considered it personal information, which, as much as possible, should be collected directly from the relevant listing broker or salesperson. Under the agreement with the board, personal information included the user’s name, phone number, business address and employer.

The organization that prepared the statistical report obtained its information partly from the MLS® database, but didn’t have a contractual relationship with the real estate board.

The licensee argued, in part, that since the MLS® information was available to users of the MLS® and the other organization from which he bought the statistics, the data shouldn’t be considered personal. In the representative’s view, real estate licensees provide business services and their business performance becomes public information.

The licensee’s argument was rejected by the Commissioner, who held that the licensee disclosed the other representatives’ personal information without their consent. Merely by using the MLS®, the other licensees didn’t consent to the use of their personal information (that is, information about their respective sales records) in their competitor’s ad. The case summary doesn’t say what remedy, if any, the Commissioner ordered, though PIPEDA contains various penalty provisions and a complainant may claim damages against a wrongdoer in the Federal Court of Canada.

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