Canada: Ottawa's Draft PIPEDA Amendments Highlight The Importance Of Security Safeguards

Last Updated: September 22 2017
Article by Lisa R. Lifshitz

It's been a long wait. More than two years have passed since Ottawa amended Canada's federal private sector privacy law, the Personal Information Protection and Electronic Documents Act, by enacting Bill S-4, the Digital Privacy Act, to establish mandatory data breach reporting requirements. Yet, ss. 10.1 through 10.3, the provisions outlining the obligations for breach reporting and notification, still are not in force pending the creation of necessary regulations. On Sept. 2, the Department of Industry finally revealed the proposed Breach of Security Safeguards Regulations, along with a Regulatory Impact Analysis Statement, which can be found in the Canada Gazette. The proposed regulations will come into force at the same time as s. 10 of the Digital Privacy Act and are open for comments from interested parties for a period of 30 days.

By way of a refresher, following the implementation of the new data breach sections of PIPEDA, organizations that experience a data breach (referred to in PIPEDA as a "breach of security safeguards") must determine whether the breach poses a "real risk of significant harm" (which may include bodily harm, humiliation, damage to reputation or relationships, loss of employment, business or professional opportunities, financial loss, identity theft, negative effects on the credit record and damage to or loss of property) to any individual whose information was involved in the breach by conducting a risk assessment. When conducting this risk assessment, organizations must consider the sensitivity of the information involved and the likelihood of whether it will be misused. If the answer is yes, the organization is required to notify affected individuals and the privacy commissioner of Canada as soon as "feasible." Additionally, since the primary objective of the new data breach reporting and notification framework in PIPEDA is to prevent or mitigate the potential harm to individuals resulting from a breach, the updated act requires organizations that notify individuals of breaches to notify other third-party organizations, government institutions (or part of a government institution) of a potentially harmful data breach if the organization making the notification concludes that such notification may reduce the risk of harm that could result from the breach or mitigate the potential harm.

Data breach report to the commissioner

The proposed regulations provide a list of requirements that must be covered in any notice to the commissioner. The RIAS further notes that this list is not intended to be exhaustive and there is nothing in the regulations that precludes an organization from providing additional information to the commissioner should the organization believe that the information is pertinent to the commissioner's understanding of the incident.

At a minimum, the data breach report to the commissioner must be in writing and must contain the following information:

  1. a description of the circumstances of the breach and, if known, the cause;
  2. the day on which, or the period during which, the breach occurred;
  3. a description of the personal information that is the subject of the breach;
  4. an estimate of the number of individuals in respect of whom the breach creates a real risk of significant harm;
  5. a description of the steps that the organization has taken to reduce the risk of harm to each affected individual resulting from the breach or to mitigate that harm;
  6. a description of the steps that the organization has taken or intends to take to notify each affected individual of the breach in accordance with s. 10.1(3) of the act; and
  7. the name and contact information of a person who can answer, on behalf of the organization, the commissioner's questions about the breach.

Notifying the affected individual

Similarly, while the proposed regulations also list the requirements that must be contained in any notification to affected individuals, the RIAS states that companies can provide additional information and/or design the notice to suit the intended audience. Minimally, the following information is required in any notice to an affected individual:

  1. a description of the circumstances of the breach;
  2. the day on which, or period during which, the breach occurred;
  3. a description of the personal information that is the subject of the breach;
  4. a description of the steps that the organization has taken to reduce the risk of harm to the affected individual resulting from the breach or to mitigate that harm;
  5. a description of the steps that the affected individual could take to reduce the risk of harm resulting from the breach or to mitigate that harm;
  6. a toll-free number or email address that the affected individual can use to obtain further information about the breach; and
  7. information about the organization's internal complaint process and about the affected individual's right, under the act, to file a complaint with the commissioner.

Direct notification/indirect notification

The regulations confirm that organizations can communicate with affected individuals through a variety of channels, including: (a) by email or any other secure form of communication if the affected individual has consented to receiving information from the organization in that manner; (b) by letter delivered to the last known home address of the affected individual; (c) by telephone; or (d) in person.

However, the regulations also recognize that there might be circumstances when "indirect" notification of affected individuals is acceptable. Examples include: when (a) the giving of direct notification would cause further harm to the affected individual; (b) the cost of giving of direct notification is prohibitive for the organization; or even when (c) the organization does not have contact information for the affected individual or the information that it has is out of date. In these circumstances, the proposed regulations suggest that a public announcement, i.e., a "conspicuous message" posted on the organization's website for at least 90 days, or the use of an advertisement that is "likely to reach the affected individuals" would be acceptable. However, one may question whether this carve-out, which clearly puts the onus on the aggrieved party to take active steps to find out about the breach, is actually reasonable in most circumstances as it may prove rather tempting to organizations that would rather avoid the considerable cost of individual notification and instead rely on digital publication.

Data breach record-keeping

Significantly, companies that experience data breaches will no longer have the ability to hide them. Under the draft regulations, organizations must maintain a record (the word is undefined and may arguably be broadly interpreted) of every breach of security safeguards for a minimum of 24 months after the day on which the organization determines that the breach has occurred. Ouch. Even worse, the "record" has to be sufficiently detailed and must contain any information pertaining to the breach that enables the commissioner to verify compliance with s. 10.1(1) and (3) of the act. The regulations do confirm that the data breach report provided to the commissioner as described above can also be considered a "record" of the breach of security safeguards.

Next steps

What does this all mean for Canadian businesses? For one thing, organizations may wish to dust off and revisit their existing corporate data breach/breach of security safeguards policies to ensure that they at least minimally dovetail with the proposed regulations. If an organization does not yet have a data breach/breach of security safeguards policy, then it's high time to consider putting one in place.

As the recent Equifax data breach earlier this month reminded us, no company is immune to the threat of hackers and the loss of personal information and organizations that are subject to PIPEDA will be obliged to report such incidents. Once the mandatory provisions of PIPEDA dealing with breach reporting, notification and recordkeeping come into force, any organization that knowingly fails to report to the OPC or notify affected individuals of a breach that poses a real risk of significant harm, or knowingly fails to maintain a record of all such breaches, could face fines of up to $100,000 per violation. Therefore, there is no time like the present for smart companies to review their current practices and establish those critical safeguards/methodologies to avoid these penalties.

Originally published by Canadian Lawyer Online - IT Girl Column

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.

Lisa R. Lifshitz
Similar Articles
Relevancy Powered by MondaqAI
McCarthy Tétrault LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
McCarthy Tétrault LLP
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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