Year in Review: Why data and privacy were top of mind in 2018

It feels like hardly any time has passed since I wrote the 2017 year in review post, but apparently, it’s been a year! Let’s look back at what happened on the legal landscape in 2018.

Let’s start with the Toronto Real Estate Board (TREB) case. Arguably the biggest legal development of 2018, it arose out of inaction. The Supreme Court of Canada refused to hear TREB’s appeal from the Federal Court of Appeal decision. This meant the Federal Court of Appeal decision was upheld, and TREB was required to include the “disputed data” in their Virtual Office Website (VOW) feed. If you don’t know what disputed data is, or you have no idea what I’m talking about, then you must be living under a rock somewhere. I suggest visiting REALTOR.ca to find a nice new place to live, possibly in the TREB area if you want sold prices from their VOW feed.

2018 was also a big year for privacy law. There was a lot of hype around the European Union General Data Protection Regulation (GDPR), which came into effect in May. The extraterritorial reach of this legislation had companies across the world updating their privacy policies and changing their websites to notify consumers about cookies–and no, I don’t mean the tasty kind. CREA’s privacy guru, Simon Parham, has listed some helpful resources on REALTOR Link® you may want to consult to find out if the GDPR applies to you.

The other big privacy development was the coming into force of the data breach notification regulations under the Personal Information Protection and Electronic Documents Act (PIPEDA). These regulations make reporting of data breaches mandatory in some situations. They also require records to be kept about data breaches that don’t meet the threshold of ones that must be reported. Simon has also put together some helpful resources on these regulations for those of you in provinces where PIPEDA applies.

I had high hopes for Canada’s anti-spam legislation (CASL) in 2018, but sadly nothing has happened on that front. The Standing Committee on Industry, Science, and Technology conducted a review of CASL in 2017 and issued a report with their findings in December 2017. The report made 13 recommendations about how CASL should be clarified or improved. Some of these recommendations could really help our members, such as clarifying whether business-to-business emails are considered Commercial Electronic Messages (CEMs) and investigating the potential impact of the private right of action were it to come into force. The report also recommends creating a short name for the legislation, which would be the Electronic Commerce Protection Act, or ECPA for short. That said, the government hasn’t tabled any bills to amend CASL in light of this report, so I remain the Queen of CASL for now.

Finally, I should probably mention the Do Not Call List. This legislation is old and hasn’t changed, but the Canadian Radio-television and Telecommunications Commission (CRTC) did a whole bunch of enforcement in the real estate industry in 2018. It might be a good time to refresh your memory of these regulations so that you can avoid any trouble in 2019!

For information on all things legal, make sure to stay connected to the CREA Café for regular updates.

The article above is for information purposes and is not legal advice or a substitute for legal counsel.

Allison McLure, former Legal Counsel, provided advice to CREA, boards, and associations on intellectual property law, DDF®, and Canada’s anti-spam legislation, as well as protected CREA’s trademarks and helped members comply with federal legislation and CREA’s trademark rules.


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