September 5th - 2003

Preparing for privacy legislation

Legislation to protect the personal privacy of every individual will take effect on January 1, 2004.

Legislation to protect the personal privacy of every individual will take effect on January 1, 2004. Every business in Ontario will be required to comply with the federal Personal Information Protection and Electronic Documents Act (PIPEDA or the Privacy Act) and REALTORS need to be aware of how this new law will affect how they do business.

PIPEDA is designed to provide people with the right of privacy regarding personal information that is collected, used or disclosed by an organization, association, partnership or person. A REALTOR collecting information about a consumer will be required to inform that person of how the information will be used and will need to obtain the person’s consent for the collection, use and distribution of the information. The consumer will have the right to access their personal information held by a REALTOR or his or her firm and to have it corrected if necessary.

Personal information

So what is personal information? Part 1 of PIPEDA defines personal information as follows:

"Personal information means information about an identifiable individual, but does not inlcude the name, title or business address or telephone number of an employee of an organization.

This definition of "personal information" makes it clear that if the information "identifies" an individual, the legislation applies.

Generally, personal information is data that permits someone to learn something; that relates to a person; and permits the identification of that person.

Resources available

While individual REALTORS and firms will need to make themselves aware of, and ultimately comply with, the requirements of PIPEDA, real estate boards and OREA are also preparing themselves for privacy compliance regarding the personal information that they collect, use and disclose. To assist REALTORS, OREA is developing a continuing education course on privacy compliance as well as new legal pamphlets and other privacy compliance materials for the website. Both the continuing education course and the first few legal pamphlets will be available early this fall.

EA has also incorporated appropriate clauses into its standard form listing agreement and buyer agency agreement to permit the collection, use and disclosure of personal information relating to the transaction by the brokerage and the real estate board.

The Canadian Real Estate Association has also developed a valuable resource for information about the new Act and how it will impact REALTORS. The “Privacy Toolkit” is available on REALTORLink. The toolkit contains background information as well as practical advice for compliance including a frequently asked questions section. To view the privacy legislation, visit www.privcom.gc.ca.

Existing information

Many REALTORS have asked the question: “What happens to the personal information I already have on my clients?”

Any personal information that is no longer required must be removed.  The Privacy Act states that the retention of personal information is to be limited to the period of time required to fulfill the purpose for which it was collected, or as required by law.

If there is still a purpose for having that personal information, REALTORS do not need to obtain further consent to continue to keep it in their possession. However, if after January 1, 2004, the information is going to be used or disclosed in any way other than for the original purpose, REALTORS must obtain the consent of that person.

Obtaining consent

Obtaining consent is always the best approach. Consents can be express or implied and express consents can be written or verbal.  The more sensitive the personal information, the stronger the need is to have consent in writing.

Consent also needs to go along with “purpose.”

  1. The individual needs to know the purpose for which he/she is consenting to the collection, use or disclosure of personal information.
  2. The purpose has to be reasonable in the circumstances; and
  3. The collection, use and disclosure cannot go beyond the stated purpose without further consent.

The Privacy Act will have a definite impact on the way REALTORS do business, but also on the way all businesses operate. Watch for more on privacy compliance over the next several months.

Step up to privacy law compliance

The federal Privacy Act will take effect in Ontario on January 1, 2004. This law will impact every business in Ontario including real estate and REALTORS need to find out how it will affect them.

Step one:Become informed. To get familiar with the new legislation - visit www.privcom.gc.ca

Last year, the CREA Assembly passed a privacy code for organized real estate which shows how the Privacy Act applies to how REALTORS conduct their business, CREA’s privacy code as well as practical advice for compliance, including a frequently asked questions section can be found at www.realtorlink.ca.

Step two: Watch for and attend OREA’s upcoming continuing education course on privacy compliance.

Step three: Visit the legal section of the OREA web site often for updates.

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For more information contact

Ontario Real Estate Association

Jean-Adrien Delicano

Senior Manager, Media Relations

JeanAdrienD@orea.com

416-445-9910 ext. 246

Ontario Real Estate Association
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