Canada: Proposed Anti-Spam and Privacy Law Changes: What Business Need To Know

Last Updated: November 22 2010

Ariane Siegel, Paige Backman, Corrine Kennedy and Geoffrey Marr1

After four years of review, discussion and recommendations by leading privacy experts, Privacy Commissioners and Industry Canada, Bill C-29, which provides proposed amendments to the Personal Information Protection and Electronic Documents Act2 ("PIPEDA"), began its second reading in the House of Commons on October 26th, 2010, and is expected to come into force early in 2011. The proposed amendments under Bill C-29 are being made in accordance with a mandatory five-year review of the legislation provided for in Section 29(1) of PIPEDA.

One significant amendment involves a new provision dealing with breach notification. For the first time under PIPEDA, the proposed amendments present a mandatory notification framework for security breach related to personal information.

It is interesting to note that the Bloc Québécois announced their opposition to Bill C-29 at the second reading stage, stating that federal privacy laws interfere with provincial jurisdiction.

Also making headlines recently is the re-introduction of anti-spam legislation, entitled Bill C-28, the Fighting Internet and Wireless Spam Act ("FISA"). FISA targets spam or commercial electronic messages, spyware and phishing, among other things. It also provides additional amendments to PIPEDA, including prohibiting the collection of personal information through unauthorized access to computer systems, and prohibiting the unauthorized compiling of electronic address lists. FISA is also at the second reading stage in the House of Commons.

Below is a list of the most relevant proposed amendments to PIPEDA under Bill C-29 and highlights of FISA, from a corporate perspective, along with suggested action items to ensure your organization continues to be compliant with PIPEDA and will be compliant with FISA.


What constitutes valid consent?

The proposed amendments refine when the consent given will be valid and expand on the enumerated exemptions available regarding requirements to obtain an individual's consent. Consent of an individual will only be valid "if it is reasonable to expect that the individual understands the nature, purpose and consequences of the collection, use or disclosure of personal information to which they are consenting."3

This clarification suggests a higher onus will be placed on the entity seeking consent, whether such consent is being sought through its privacy policy or otherwise, to ensure that such entity clearly explains how and why personal information will be collected, used and/or disclosed, as well as ensuring that such entity does not overstep the bounds of reasonability in so doing. This proposed amendment should also give businesses pause when seeking consent from children, minors and those with whom there may be capacity issues.

In addition, the proposed amendments expand the list of circumstances in which an entity may collect and use personal information without the consent of the individual, including notably, where the personal information constitutes the work product created in the course of employment,4 and disclose information without the consent of the individual where such personal information is requested by police in certain instances.5 Businesses should take the opportunity to review their privacy policies to ensure that they reflect correct practices and that the individual is providing the appropriate level of informed consent in respect of the collection, use and disclosure of his or her personal information.

Is business contact information considered personal information?

The current definition of "personal information" covers "information about an identifiable individual." However, it specifically excludes the name, title or business address or telephone number of an employee of an organization. Privacy practitioners have long lamented that the exclusion contains some glaring omissions, namely the fax number and email address of an employee of an organization. In the context of an act that is meant to address the electronic flow of information, the omission of the latter form of contact information seemed particularly glaring.

The proposed amendments provide for an expansion of such exclusion to include the work email address, fax number and any similar information about the individual by introducing a new defined term "business contact information."6 The wording of the provision addresses the deficiency under PIPEDA, in addition to leaving the language broad enough to capture other means of communication which may, in the future, play the same central role that email communication does in today's business world. It is important to note, however, that such information must be collected, used or disclosed solely for the purpose of communicating with the individual in respect of their work.7

Accordingly, businesses can feel more comfortable using the business-card type information of contacts for individuals, so long as the use of such contact information is being undertaken in connection to that individual's work position.

What information can I disclose in a business transaction?

Businesses have long been frustrated that PIPEDA requirements present a grey zone with respect to the nature of consent required for the collection, use and disclosure of personal information by businesses in the course of a business transaction, whether in respect of mergers, acquisitions, joint ventures or other corporate matters.

The proposed changes to PIPEDA would explicitly provide an exemption for disclosure of certain personal information in the course of business transactions.8 The parties may disclose certain personal information of individuals without their consent in this context, provided that the parties enter into an agreement in advance of such disclosure which (i) limits the use of the information disclosed to the purposes of the transaction, (ii) agrees to protect the information with reasonable and appropriate safeguards from disclosure, and (iii) provides for the return or destruction of the personal information disclosed within a reasonable time if the transaction does not move forward. The personal information that may be disclosed in this instance must be necessary for the parties to determine whether they should proceed with the transaction, for due diligence purposes for example, and necessary for the completion of the transaction if they do proceed.9

The business transaction amendments do not apply to prospective business transactions where the primary purpose is the purchase, sale or other acquisition of personal information.

Accordingly, businesses contemplating an upcoming transaction that would require the disclosure of personal information should be cognizant that, until the proposed amendments become law, consent of the individual to whom the personal information relates is still required. Once in force, the parties should work with their legal counsel to ensure that any letters of intent and non-disclosure agreements comply with the requirements set out above.

What will be required in the event of a breach of personal information?

To date, outside of Alberta and certain provincial health information legislation, Canada has not had mandatory breach notification requirements for businesses facing unauthorized access or disclosure of personal information they collect (privacy breach). Until now, although the Office of the Privacy Commissioner and some provinces had provided guidelines of 'best practices' in such situations, the majority of businesses were not required by law to disclose a privacy breach.

Bill C-29 would impose two separate levels of breach notification, one in respect of notifying the Privacy Commissioner of Canada, and another in respect of notifying individuals whose personal information has been compromised by the breach. As a result of section 10.1 of Bill C-29, a company would be required to disclose a breach of privacy laws to the Privacy Commissioner of Canada where there has been a "material breach of security safeguards under its control."10 Whether a breach will be considered "material" must be determined by the company through examining several factors, including the sensitivity of the information implicated in the breach, the number of individuals affected, and whether the breach represents a systematic failure to safeguard personal information by the organization.

Under section 10.2 of Bill C-29, an organization would have to inform an individual of a breach of the privacy safeguards implemented by it where there is a reasonable chance the breach "creates a real risk of significant harm to the individual." The provision provides a large scope for the kind of harm that an individual could experience as a result of the breach, including but not limited to humiliation and financial loss, and provides several factors to consider in evaluating the harmful nature of the breach to the individual. The breach will be more likely to be considered harmful to the individual if it is personal information that is sensitive and likely to be misused.11

Businesses should ensure that their privacy policies reflect the breach notification requirements provided for under the proposed legislation, ensure that the privacy practices of the business incorporate a timely and structured response to a privacy breach, in accordance with the proposed amendments, and have a well-developed plan in place for notification in the event of a breach.

What are the penalties for non-compliance?

Bill C-29 does not provide for specific penalties for non-compliance with certain sections. However, the Privacy Commissioner may investigate privacy complaints and conduct audits on an organization. Furthermore, the Federal Court can award damages for non-compliance with PIPEDA.


What constitutes valid consent?

In an attempt to reduce unsolicited emails (ie: spam), FISA contains consent requirements. Under FISA, spam is considered a commercial electronic message sent by any means of telecommunication including email, text, phone, sound, and voice or image message. One major focus of FISA is that it prohibits the sending of spam unless the person receiving the message has consented to receiving it, and the message is in a form that identifies the sender and provides instruction on unsubscribing.12

There are exceptions to the consent requirements, which include: the existence of a personal or family relationship, providing a requested estimate or quote, a message to facilitate, complete or confirm a commercial transaction, providing product recall or warranty information, or safety information about a product the message recipient has purchased, a message about an ongoing membership or subscription, and a message related to an employment relationship or benefit plan.13

Before sending out a commercial electronic message to its customers, companies should ensure that their messages will not be considered spam and caught under FISA, or ensure that the messages sent fall under one of the exceptions mentioned above.

Does FISA combat spyware, malware and phishing?

FISA addresses spyware and malware issues, and prohibits, in the course of a commercial activity, the installation of a computer program that causes an electronic message to be sent from another person's computer, without the individual's express consent.14

FISA also attempts to prevent "man in the middle attacks," where an electronic communication, intended to travel between two parties, is intercepted and redirected without either party's knowledge. FISA prohibits the altering of transmission data in a message so that the message is routed to another destination. Under this bill, all alterations of transmission data require the sender's express consent.15

Therefore, companies should be cautious with the electronic messages they send out and ensure they are complying with FISA. Furthermore, businesses which install computer programs on another individual's computer, in the course of their commercial activities, will need to review their consent and disclosure practices.

What are the penalties for non-compliance?

There are monetary penalties for violating FISA, including up to one million dollars per violation for individuals and ten million dollars for businesses.16 Furthermore, FISA allows for a private right of action, which would permit individuals and businesses to take civil action against someone who violates this bill.

Overall, organizations should keep a watchful eye on the progress of Bill C-28 and C-29. In preparation of the bills coming into force, it would be prudent of organizations to re-examine their privacy policies, breach notification procedures, how they send commercial electronic messages, and the security measures they have in place to protect the privacy of others.


1.Ariane Siegel and Paige Backman are Partners and co-leaders of the Privacy Team; Corrine Kennedy and Geoffrey Marr are Associates.

2.2000, c. 5.

3.Ibid, s. 5.

4.Ibid, s. 7(2).

5.Ibid, s. 6.

6.Bill C-29, s. 3.

7.Ibid, s. 4.

8.Ibid, s. 7.


10.Ibid, s. 10.1

11.Ibid., s. 10.2

12.Bill C-28, s. 7.


14.Ibid, s. 9.

15.Ibid, s. 8.

16.Ibid, s. 21

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.