The IPC recently responded to a complaint by a dentist about the the RateMDs review site, at which several individuals purporting to be her patients had posted anonymous reviews. The OPC findings are significant favor the public’s right of expression over doctors’ interest in personal privacy.
The OPC first held that RateMDs did not need the complainant’s consent to publish the reviews because the reviews constituted so-called “mixed personal information” – a term used by the IPC/Ontario to refer to personal information that relates to more than one individual. The Federal Court of Appeal test from Pirrie calls for a very contextual balancing of interests in addressing access requests for such information. In this case, the OPC applied a similar approach to deny the complainant the ability to block the publication of others’ opinions about her. It said:
Giving effect to the Complainant’s lack of consent would mean the interests of the patients who are consenting to the publication of their reviews and ratings would not be respected, and the benefits to the public more broadly would be negated. We are therefore of the view, based on a balancing of interests of the Complainant with those of the reviewers and the public more generally, that this aspect of the complaint is not well-founded.
The OPC held that RateMDs’ accuracy and correction obligations under PIPEDA require it to correct ratings that are inaccurate, incomplete or out-of-date. However, it also acknowledged that challenging the inaccuracy of an anonymous review is difficult and held that that PIPEDA will “generally” prohibit review sites like RateMDs from disclosing the identity of anonymous reviewers.
Finally, OPC held, that RateMDs should discontinue a paid service that allowed doctors to hide up to three reviews “deemed to be suspicious.” While this finding is understandable, it is ironic that a privacy regulator has applied our commercial privacy statute to take away a potential privacy remedy. All in all, that is what this finding does: it makes clear that PIPEDA is not an effective remedy for challenging seemingly fair reviews posted on a bona fide review site. Those aggrieved must go to court and sue in defamation or (if they are up for a challenge) breach of privacy.