Might The Prime Minister Ban TikTok? – Privateness
Short answer: Probably not alone. He probably needs Parliament’s help. But why are we talking about banning TikTok?
As many of our readers know, President Trump has been trying to ban TikTok for months. On August 6, 2020, President Trump issued Executive Order 13942, which gave his Secretary of Commerce the power to decide which transactions with TikTok were prohibited. Then, on August 14, 2020, the president issued another executive order instructing the owner of TikTok to “sell” all interests and rights in TikTok. Some call this the “shakedown”.
The secretary then explained on September 24, 2020 which transactions with TikTok were prohibited. Some of these transactions include hosting the app on the Google and Apple Play stores, updating the app, posting content, etc. In practice, TikTok has been banned.
But can the president do that? Type of.
The President relies on the International Emergency Economic Powers Act (“IEEPA”), which gives the President immeasurable authority to declare a national emergency and target a foreign entity. Once a threat has been attacked, the President can:
“regulate, direct and compel, cancel, suspend, prevent or prohibit … any transfer … of or trade in … or transactions involving property in which a foreign country or national is interested. . relating to property under United States jurisdiction. “50 USC § 1702 (a) (1) (B).
Wide right? Well there are limitations. Some of these are believed to apply here, such as the inability to prohibit certain types of personal communication.
As of now, the owner of TikTok has not sold TikTok, and the owner is still negotiating with the US government and several other companies such as Oracle and Walmart. As for the Secretary’s rule, which effectively prohibits TikTok, this rule has been the subject of constant litigation.
The most recent decision (TikTok, Inc. v Trump) was passed on December 6, when Justice Nichols of the US District Court ordered an injunction to stop the US government’s ban. His reasoning was that TikTok succeeded in proving that the “government likely exceeded the express limits of the IEEPA” and that the secretary’s actions were arbitrary and capricious because the secretary failed to examine “obvious” alternatives to an outright ban . Although the president has broad power under IEEPA, his way of implementing the ban has appeared to be inadequate.
Okay, but could the Canadian Prime Minister do that?
We are skeptical that he could “ban” TikTok on his own. While the president relies on the authority given him by Congress (and is still challenged in court), the prime minister could rely on several laws to take decisive action, but not to the same extent.
For example, the Emergency Act strictly defines the types of emergencies that the Prime Minister could declare and take action to address. For example, the prime minister may declare a “public order emergency” which is an “emergency arising from threats to the security of Canada that are serious enough to constitute a national emergency”. The law goes on to define “threats to the security of Canada” as a list of items:
(a) espionage or sabotage directed against Canada or prejudice to the interests of Canada or activities aimed at or in support of such espionage or sabotage;
(b) Activities of foreign influence within or relating to Canada that are harmful to the interests of Canada and that are secret, misleading or pose a threat to any person;
(c) Activities within or in connection with Canada aimed at threatening or using serious acts of violence against persons or property in order to achieve a political, religious or ideological goal within Canada or a foreign state, and
(d) Activities which aim to undermine, through covert illegal activity, or which aim or ultimately result in the violent destruction or overthrow of the constitutional system of government in Canada;
These are wide; But could they be used by the Prime Minister to ban TikTok? Could be. We are skeptical.
There’s also the Investment Canada Act, which allows the government to stop investments that harm national security. For example, in 2015 the federal government prevented a Chinese company from setting up a factory in Québec near the headquarters of the Canadian space agency. However, TikTok does not actually “invest” in Canada. So this law is likely not the winner.
We could spend all day analyzing federal laws, after all, we’re a law firm! However, it’s equally important to understand the practical and political reasons why TikTok is undergoing this audit, and what your company can do to avoid the same fate.
The short answer is that citizens and governments are realizing the importance of privacy. There are allegations that TikTok violates the privacy rights of individuals. For example, TikTok agreed to pay $ 5.7 million to resolve allegations made by the Federal Trade Commission that it illegally collected children’s personal information. That’s a lot of money to make on a very serious claim. TikTok is also alleged to have mistreated user data and passed it on to China.
PIPEDA regulates the privacy of Canadians. If a company mishandles personal information, the company can face a fine. PIPEDA appoints a data protection officer to protect the privacy rights of Canadians. However, the commissioner is not an official. The commissioner is just an investigator who then calls on the federal courts – the civil servants – to hand out fines. In practice, if TikTok abused personal information and refused to comply with the commissioner, the Commissioner could not “ban” TikTok. The commissioner would have to ask the courts for help.
Some might argue that the Commissioner needs more power – perhaps the power to set minimum standards of privacy for software that, if violated, would prevent the software from entering the market, much like the Canadian Food Inspection Agency is preventing certain unsafe foods from entering the market. However, this is not the current legal system in Canada. However, with the advent of Bill C-11, the commissioner could soon get more power. But to explain that Bill is best left for another blog post.
What’s the lesson here?
Protect your customer data! Don’t focus on your minimum obligations. Focus on meeting higher standards to protect your customers’ privacy. Otherwise, just like TikTok, WeChat, and even Desjardins, your company could face public scrutiny in our latest class action lawsuit. We at Siskinds are here to help you prevent this from happening.
This article was written in collaboration with co-author Savvas Daginis, a law student.
The content of this article is intended to provide general guidance on the subject. A professional should be obtained about your particular circumstances.