Canada: The Right To Be Forgotten

This past October, the European Parliament's Committee on Civil Liberties, Justice and Home Affaires ("LIBE") voted in favour of a major reform of the current European Union ("EU") data protection regime consisting of the Data Protection Directive, introduced in 1995, and national legislative works existing across EU member states. Intended as a response to privacy concerns in respect of technological developments and recent cases involving mass surveillance, LIBE adopted a proposed General Data Protection Regulation (the "Regulation"), which, once in force, would not only represent a major change in the protection of personal information within the boundaries of the EU but which could extend to and impact Canadian businesses.

Features of the General Data Protection Regulation

The right to be forgotten, or the "right to erasure" as it has more recently been dubbed, allows individuals to require the deletion of their digital trace, that is, any personal data relating to them, and that there is no further dissemination of such data. Individuals may demand erasure "where the retention of such [personal] data is not in compliance" with the Regulation, including where the data is no longer necessary for the purpose it was collected, where the individual concerned has withdrawn consent, or simply, and perhaps most importantly, because the individual objects to the processing, use or disclosure of their personal data. These requests extend not only to companies collecting personal information but also to third-party internet or cloud hosting companies to whom data may have been transferred. While the extent and scope of the Regulation is still unclear, it is likely to be particularly onerous on internet service providers and major search engine, cloud and social-media companies like Google, Facebook, LinkedIn and YouTube, due to the amount of personal data processed on these platforms.

The Regulation also includes stronger safeguards for data transfers to non-EU countries, such that if a court or administrative authority of a third-party country asks a company to divulge personal information processed or controlled in the EU, such request must be approved by the supervisory authority before any data may be transferred. Furthermore, the company transferring the requested data would have an additional obligation to notify the person concerned prior to any such transfer. EU-based multinational corporations that, by the very nature of their business, regularly transfer data outside of the EU, be it to other branches, affiliates or subsidiaries, including cloud service providers, may benefit from an exception to the data transfer restrictions limiting transmission to "white list countries", as determined by the Commission. Such exceptions are granted where both the EU-based data controller or processing company and the non-EU recipient company, or respective branches of same, have successfully obtained a European Data Protection Seal issued by any supervisory authority in the EU following the audit and certification of their data processing activities. The EU Data Protection Seal is valid for five years and provides additional incentives to certified companies, including an exemption from fines for non-compliance in the absence of intentional or negligent conduct. As it currently stands, both Canada and the US are members of the EU "white-list" and deemed to be countries having an adequate level of data protection by reason of their domestic law or international commitments.

The issue of how consent may be given remains the subject of much debate as, in its current draft, the Regulation requires that consent be free, specific, informed and explicit, thus raising concerns for companies whose existing business models do not always allow for express consent to be obtained and which rely on the general application that consent to the collection, use and disclosure of personal data may be implicitly given or inferred in prescribed situations. How this matter will be resolved and reflected in the final draft of the Regulation could bring with it the obligation for some companies to re-evaluate how they conduct certain business activities. The Regulation also requires that consent be freely given, thereby prohibiting that the execution of a contract or provision of service be made conditional upon the receipt of consentto data processing, except where such consent is necessary or inherently connected to the contract or service.Moreover, individuals have the right to withdraw their consent at any time.

Companies failing to comply with the Regulation could, as the proposed text of the Regulation currently reads, face fines of up to €100 million or 5% of worldwide annual turnover, whichever is greater, thereby pushing the risk of exposure to such extensive financial sanctions to the top of the priority list of compliance matters. Also proposed, are certain alternate or additional sanctions, including regular audits of data processing and compliance measures and written warnings for unintentional, non-negligent, first offences.

Personal Data Protection in Canada

In Canada, the collection, use and disclosure of personal information is regulated concurrently by the federal and provincial governments. At the federal level, two statutes exist to govern privacy issues, the Privacy Act, which regulates federal government departments and agencies, and the Personal  Information Protection and Electronic Documents Act ("PIPEDA"), which sets out how private sector organizations may collect, use or disclose personal information of individuals in the course of their commercial activities. At the provincial level, each of the provinces and territories has privacy legislation the governs the collection, use and disclosure of personal information held by government agencies, however, British Columbia, Alberta and Quebec, and most recently, Manitoba, are the only provinces to have enacted laws governing the private sector that are recognized as being substantially similar to PIPEDA.

None of these four provincial statutes provide a right to erasure comparable to the Regulation, but instead all contain various versions of a right for individuals to update and rectify erroneous information kept in a file concerning them. Furthermore, each such provincial statute includes a "limited retention" principle applied to the right to collection, use and disclosure of information, such that, to highlight one province as an example, according to Quebec's an Act Respecting the Protection of Personal Information in the Private Sector ("PIPP"), information may only be retained for as long as necessary to fulfill the purpose for which it was collected. Moreover, PIPP provides that where consent is required, it must be free, clear, informed and specific and, in connection therewith, individuals concerned may require personal information collected be deleted, but only where such information was collected otherwise than according to law.

In Quebec, in addition to the rights granted under PIPP, the Civil Code of Québec (the "CCQ") protects the right to privacy at large. It prohibits anyone from establishing a file on another person without having a serious and legitimate reason for doing so. It further prohibits anyone keeping such a file from communicating the information contained therein to third parties or using it for purposes not relevant to the purpose of the file, unless the person concerned consents to such use or disclosure. The CCQ gives anyone whose personal information is contained in such a file the right to demand deletion of information but only where the information collected is obsolete or unjustified by the purpose of the file.

Similarly to the provincial statutes, PIPEDA prohibits any unauthorized use or disclosure of personal information collected by organizations for purposes other than those for which it was collected and grants concerned individuals the right to require such organizations to rectify any personal information, which includes, as appropriate, the correction, addition and deletion of information, that is inaccurate or incomplete, however, this right is conditional upon the individual successfully demonstrating such inaccuracy or incompleteness and furthermore organizations do not have to grant individuals access to their personal information if they provide satisfactory reasons not to do so. PIPEDA also calls for respect of the "limited retention" principle and provides that organizations should erase data that has become obsolete, unless the individual consents to its retention, but fails to explicitly provide the right for individuals to request erasure in the absence of the data becoming obsolete or which is inaccurate or incomplete and remains silent with respect to any right to withdraw consent.

Contrary to what has been proposed by the Regulation, the existing rights to "erasure" under the laws applicable to the collection of data both at the provincial and federal levels in Canada are quite limited. Other significant differences between the Canadian and proposed European regimes include when and how consent to the collection of information is required, the extent to which third party disclosure is regulated and the severity of sanctions imposed upon any breach.

Possible Effects on Canadian Businesses

Once in force, the Regulation will apply not only to companies processing data within Europe, whether European based or multinational with branches in Europe, but will also extend to European companies whose data processing is conducted outside of the EU, such as non-EU based cloud data centers, as well as non-EU companies that conduct any data processing of personal information of individuals in the EU. Canadian companies operating outside of the EU but offering products or services to individuals within Europe, irrespective of whether such products or services are offered at no cost to the consumer, would thus be caught by the Regulation.

What's more, is that non-EU companies not directly subject to the Regulation by the nature of their own commercial activities may also be affected by the reform in cases where they conduct business with EU companies and are recipients of data processed in the EU. Given the large financial incentives to comply with the Regulation and the responsibility of companies subject thereto for personal information in their possession or custody, including information transferred to a third party, non-EU companies may find their EU-based partners insistent upon their implementing measures necessary to ensure compliance with the Regulation on a global scale, despite not legally being bound to do so, which in turn may prove quite costly.

The introduction of similar legislation in Canada could potentially bring with it tremendous cost to existing businesses. To cite one example, companies would need to find a way to ensure that personal data is stored appropriately, such that it is effectively possible to delete such personal data upon request. The current draft of the Regulation includes a limitation to the right to erasure and provides that where "the particular type of storage technology does not allow for erasure and has been installed before the entry into force of this Regulation" data should be "restricted" instead of erased. How this grandfathered right is to be interpreted and applied practically will be of interest to many.

Could this be reflective of a global trend to come in privacy law? Pointing in that direction is the recent legislation amendment adopted by the State of California which grants minors a right similar in nature to the right to erasure proposed by the Regulation and specifically, to remove posts they have made on Internet Web sites and mobile apps, such as social-media giants Twitter and Facebook. It further requires service providers to make clear "how the minor may remove or, if the operator prefers, request and obtain the removal of content or information posted on the operator's Internet Web site, online service, online application, or mobile application". While the legislative amendment requires the removal of such posts from display, it does not require that the data be removed from the service providers' servers and further does not require the service providers to erase, or have erased, any content copied or posted by a third party or any posts in which others "mention" a minor. Similarly, the Regulation expressly provides that the right to erasure shall apply "especially in relation to personal data which is made available by the data subject while he or she was a child". As a country that has a strong history in protecting the fundamental rights and freedoms of its citizens, is Canada next in line?


 At this preliminary stage, it remains unclear precisely how and to what extent the Regulation may impact Canadian businesses and exactly which type of business are specially targeted. The evolvement and status of the Regulation should be carefully watched to keep abreast of and monitor the ways in which the reform may affect operations of companies doing business in Europe and whether such reform may be first moving towards a bigger global trend. LIBE has called for the final text of the Regulation to be agreed upon with the Council of the EU before May 2014, although it is expected that 2015 may be more realistic. The current draft of the Regulation extends a two year grace period prior to coming into force, such that businesses subject to the Regulation would need to take measures for compliance as early as 2016 or 2017.

To view original article, please click here.

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
Related Video
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
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 you may opt out by clicking here

    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.

    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.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    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.

    By clicking Register you state you have read and agree to our Terms and Conditions