Access to Civil Justice and Privacy Complaint Processes

Access to justice issues in the Canadian civil justice system are often framed around affordability, geography, and the quality of service provision. Affordability is most often linked to the high costs of privately provided legal services and the underfunding of legal aid. Geography has recently been shown to be relevant in major studies in Alberta and Ontario, one by the Canadian Forum on Civil Justice, the other by the Ontario Civil Legal Needs Project. Both emphasized that lawyers and paralegals are overwhelming concentrated in large urban centres. The quality of public service provision has been an issue in the case of, for example, court interpretation. All of these ways of framing access to justice assume that it is a matter for public policy and largely will be addressed through developments in the public sector and the public regulation of the private sector.

Less well understood as a dimension of access to civil justice is where Canadians mobilize on their legal rights when they have been violated. Recently, I conducted a major study for the Office of the Privacy Commissioner of Canada on how certain marginal groups in Canada approach privacy rights mobilization. (The report can be found at http://ycppl.osgoode.yorku.ca/research1.html .) Part of the study focused on Canadian youth between the ages of 18-24 using social networking sites such as Facebook. The core of this part of the study is an analysis of detailed interviews with 56 youth about their experiences with privacy rights issues while participating in social networking. This study suggests that access to justice may be complex in some instances because where Canadians turn to mobilize on their rights are private sector mechanisms beyond the regulatory reach of government.

The striking initial finding of the study is that almost all of these randomly selected youth had, in their view, experienced some measure of privacy rights violation. Virtually all of them understood privacy and the ambit of privacy rights as pertaining to the access and use of personal information. To put the scope of this finding in perspective, there are more than fifteen million Canadians with Facebook accounts. Are the experiences of these Canadian youth different in any significant way from the Canadian Facebook account holder in general?

How did these youth envision responding to privacy rights violations that might arise during social networking? The law and government agencies like privacy commissions are at the margins of privacy rights mobilization for them. Almost none of the youth were aware of the Office of the Privacy Commissioner of Canada or indeed that any such regulatory body of its kind exists in Canada. So how would they respond?

One type of response among the youth was to acknowledge that their rights had been violated but to decide not to do anything about it. This sort of inaction as a response to a rights violation is often described as “lumping it”. Sometimes lumping it is a reflection of the view that the privacy breach was not a significant one, at other times it is a reflection of not knowing what else to do, and at still other times it is a reflection of a worry that complaining will have negative repercussions. Only about fifteen per cent of the youth said they would lump it, even though my suspicion is that the likely number is much higher.

The second type of response is a form of “self-regulation”, which means that the youth takes actions himself or herself to avoid a similar sort of privacy rights violation in the future. This may mean in the case of Facebook making the privacy settings stronger or removing particular information like a date of birth or phone number or untagging a photo on another user’s picture wall. About one quarter of the youth appealed to some form of self-regulation.

The third type of response youth imagined is the pursuit of a privacy rights complaint about social networking through a legal venue such as a court. About a quarter of the youth presented this as the main option.

The four type of response – the most frequent – is to complain as an individual to Facebook as the social networking site provider. Unlike the self-regulation option, this type of response relies on the privacy regulations of the service provider. The youth see themselves as consumers of the websites services and the situation of a privacy rights violation as a matter of customer dissatisfaction. The path is imagined to be a sort of online consumer complaint process. This type of response was identified by more than half of the youth in the study as their first response to a privacy rights violation while social networking.

What does this finding suggest for improving access to civil justice? If more than half of Canadian youth intend in the first instance to use private company complaint processes to mobilize their privacy rights when violated, we should be paying much more attention to these complaint processes as sites for improving access to justice. These complaint processes do not fall into the familiar access to justice categories of affordability, geography or public sector service provision. Indeed, although NGOs exist in Canada that strive to improve these complaint processes, their importance is generally neglected in discussions of access to justice in Canada. Maybe we should be thinking more about how to integrate these types of NGOs into our discussion of how to improve access to civil justice in Canada.

Lesley Jacobs
Academic Director
Canadian Forum on Civil Justice