Canada: Have Your Say On "Consent" Under PIPEDA: Public Consultation Open Until July 31, 2016

Last Updated: July 11 2016
Article by McInnes Cooper

The Office of the Privacy Commissioner of Canada (OPC) wants stakeholders to participate in the discussion about consent in privacy. The Personal Information Protection and Electronic Documents Act (PIPEDA) is Canada's key legislation for balancing the protection of individuals' privacy with the legitimate need for businesses and organizations to collect, use and disclose personal information. But technological advances have put significant pressure on the ability of businesses to fulfill their privacy obligations generally and their consent responsibilities specifically – and are challenging PIPEDA's current concept of "consent".

In May 2016, the OPC released a Discussion Paper on Consent and Privacy about these challenges and potential solutions. The OPC has now invited stakeholders – individuals, organizations, other privacy enforcement authorities, academics, advocacy groups, information technologists, educators, students and other interested parties – to participate in the discussion about these challenges and potential solutions by submitting comments by Sunday, July 31, 2016.

Here's what's at stake and how you can have your say. And even if you don't participate in the public consultation process, this is a perfect opportunity to assess how current – and future – privacy law affects your business.

PIPEDA'S CONCEPT OF CONSENT

PIPEDA is Canada's key legislation for balancing the protection of the individuals' privacy with the need for organizations to collect, use and disclose personal information for legitimate business purposes.

Personal Information. PIPEDA governs the collection, use and disclosure of personal information in the course of commercial activity, defining "personal information" as "information about an identifiable individual". Personal information can include, for example:

  • Name, phone numbers, addresses of customers (with an exception for business contact information).
  • Cell phone records.
  • Certain employee information (but only for federally regulated employers).
  • Medical records.
  • Financial information.
  • Biometric information.
  • Photographs of a person and, in some cases, of their home.
  • Remote tracking information.

Consent. Consent is an integral part of the PIPEDA framework: with some limited exceptions, PIPEDA requires businesses to obtain a person's consent to collect, use or disclose their personal information. Once they've got it, businesses' use and disclosure of that information are limited to the purposes for which the individual consented and by what a reasonable person in those circumstances would consider appropriate. PIPEDA provides for both transparency – giving individuals rights to access their personal information – and oversight by the OPC. Responsibilities of businesses in relation to consent under PIPEDA include:

  • Informing individuals in a meaningful way of the purposes for the collection, use or disclosure of personal information.
  • Obtaining consent before or at the time of the collection of the personal information.
  • Obtaining additional consent when a new use is identified.

THE CHALLENGES & POTENTIAL SOLUTIONS

The OPC, in its Discussion Paper, highlights both the challenges to PIPDEA's concept of consent and potential solutions to meet those challenges.

The Challenges. PIPEDA was initially written as 'technology neutral' legislation. But actual technological advances have created significant pressures on businesses' ability to meet their privacy obligations generally and their consent responsibilities specifically. Two of the key examples the OPC identifies are the management of 'big data' and the 'internet of things' (or the 'IoT').

  • Big data – the ability to analyze enormous datasets by complex algorithms – allows information that, at one time, may not have been considered 'personal' to be used in ways that are potentially invasive, intrusive and discriminatory – often without the appropriate consent or follow-up consent having been obtained.
  • The IofT describes the ability of everyday consumer products to track, and even send out, information about the product's use. The physicality and, at the same time, invisibility of consent raises the question whether consent through use of these products is sufficiently 'meaningful' as PIPEDA requires.

The OPC also observed that the day-to-day decisions people make when balancing protection of their privacy rights with the convenience of consenting to the disclosure and use of their personal information negatively impact the effectiveness of PIDEA's consent model.

Potential Solutions. The OPC's Discussion Paper provides an overview of consent models in the European Union and the United States and canvasses four types of solutions to the challenges facing PIPEDA's current consent model.

  1. Enhancing informed consent through more user-friendly privacy checkpoints, including:

    • Greater transparency in policies and notices.
    • Managing privacy preferences across services.
    • Technology-specific safeguards.
    • Privacy as a default setting (Privacy by Design).
  2. Alternatives to consent, including:

    • De-identification (anonymizing data).
    • "No-Go Zones" (prohibition on the collection, use or disclosure of specified personal information).
    • Broadening permissible grounds for legitimate business interests or creating more exceptions under PIPEDA.
  3. Stronger governance (accountability) mechanisms, including:

    • Codes of practice.
    • Privacy trustmarks.
    • Integrating ethical considerations into the balance of privacy and legitimate business purposes.
  4. Stronger enforcement mechanisms.

THE PUBLIC CONSULTATION

The OPC has invited stakeholders (individuals, organizations, other privacy enforcement authorities, academics, advocacy groups, information technologists, educators, students and other interested parties) to participate in the discussion about consent in privacy.

Purpose. The stated purpose of the consultation is to collect potential solutions, to more clearly define the roles and responsibilities of various stakeholders and to develop an action plan for implementation. The OPC will also use the consultation to identify improvements to the PIPEDA framework and to implement them within the OPC's jurisdiction, while making recommendations for legislative changes as appropriate.

Consultation Questions. General comments on consent are welcome, but the OPC's focus will be on the Specific Consultation Questions, which include:

  1. Of the solutions identified in the Discussion Paper, which one(s) has/have the most merit and why?
  2. What solutions have we not identified that would be helpful in addressing consent challenges and why?
  3. What roles, responsibilities and authorities should the parties responsible for promoting the development and adoption of solutions have to produce the most effective system?
  4. What, if any, legislative changes are required?

Process. You can have your say by submitting comments on-line to the OPC by Sunday, July 31, 2016. Comments must meet the criteria set out on the OPC's website. But be aware: All of the information that you provide as part of this call for submissions becomes part of a publicly accessible file and will be posted on the OPC's website. A variety of interested stakeholders will be invited to meet with the OPC in the fall of 2016. Here's the OPC's checklist if you want to have your say:

  • Comments must be submitted to OPC-CPVPconsult2@priv.gc.ca by July 31, 2016.
  • Read the Discussion Paper: you must state that you have read and understood the consultation procedures.
  • Answer one (or more) of the four questions posed in the consent paper.
  • Clearly indicate which actor(s) (for example, industry, regulators, government) your comments are meant to implicate.
  • Include a one-page summary (700 words maximum).
  • If your organization is subject to the Official Languages Act, you must provide your submission (and the summary, if it has been provided) in both official languages.
  • If you provide a submission in your personal capacity that contains personal information other than your name and address (such as information related to a complaint), the submission will not be posted.
  • Indicate your name, contact information and the category that best represents your perspective (e.g. individual, organization, academic, advocacy group, information technologist, educator, etc.).

Any comments that violate Canadian law or violate the OPC's comment policy will not be posted and will either be deleted or dealt with in accordance with the OPC's legal authorities under the Privacy Act.

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.

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