Canada: Canada's Privacy Commissioner Pursues A Stronger Consent Framework And More Proactive Enforcement

Last Updated: September 28 2017
Article by Karl Schober

On September 21st, 2017, Daniel Therrien, Canada's Federal Privacy Commissioner, tabled his annual report to Canada's Parliament today. The report to Parliament includes results and recommendations with respect to the OPC's study on consent. In addition, the Commissioner requests Parliament overhaul Canada's federal private sector legislation – the Personal Information Protection and Electronic Documents Act (PIPEDA).

Consent and Technology

A key issue for regulators and businesses is how to obtain meaningful and valid consent to collect and use personal information in the digital age. Revisiting and enhancing the consent model under PIPEDA is grounded in the Commissioner's five year strategic privacy priorities. In 2016, the OPC issued a consultation paper regarding the challenges of obtaining meaningful consent in a continuously evolving technological ecosystem where the traditional "privacy policy" may not always be suitable. The OPC received feedback through roundtables, focus groups, surveys and receipt of 51 submissions from organizations, information technology specialists, academics, advocacy groups and other stakeholders.

Four Key Elements in Privacy Policies: The Commissioner stated that the OPC will be issuing an updated version of its consent guidelines that will require businesses and organizations to highlight in a user friendly way the following four key elements in their privacy notices:

  1. What information is being collected
  2. Who is it being shared with, including an enumeration of third parties
  3. The purposes for collecting, using or sharing including an explanation of purposes that are not integral to the service, and
  4. Identify the risk of harm to individuals, if any.

Risk of Harm: The OPC is amending its guidelines to require organizations to consider the risk of harm to individuals when considering the form of consent used. This consideration will be in addition to the sensitivity of the personal information and the reasonable expectations of the individual. We expect to learn more about this in the updated guidelines.

No-Go Zones: Expect new guidance for businesses and no-go zones where the use of information, even with consent, should be prohibited as inappropriate. The guidance will be aimed to provide clarity on what the OPC considers "inappropriate uses" under subsection 5(1) of PIPEDA.

Alternatives to Consent: The Commissioner outlined three potential solutions for enhancing privacy protection where traditional consent models conflict with advances in technology, including:

  1. De-identification: In some circumstances, like big data, de-identification protocols may be the right solution. The OPC will be issuing guidance on de-identification that will help businesses assess their protocols and reduce risk of re-identification to a low level where the information may be used without consent.
  2. Publicly available information: The Commissioner agrees that the categories of publicly available information in PIPEDA's regulations are out of date, and should be revisited by Parliament. For now these exceptions remain the same, but we may someday see changes to the regulations.
  3. Call for reform of new exceptions: The Commissioner has requested that PIPEDA be amended to include new exceptions to consent (section 7 of PIPEDA) to address social activities not contemplated when PIPEDA was first drafted. The goal is to help organizations use data for new purposes that would benefit individuals and obtaining consent is not practical. For example, a mobile app wishes to now use information collected for geolocation mapping, and the business can demonstrate that the benefit of the new use of information outweighs the privacy incursion. This option would be considered a last resort and require pre-approval by the OPC.

Overhaul of PIPEDA including new Powers

The Commissioner reported that it is time to revisit how Canada's federal privacy legislation, enacted in 2000, meets the realities of today's digital world, including advances technology as well the addition of new enforcement powers already used by the OPC's counterparts in the U.S. and Europe. The Commissioner proposed to Parliament that this overhaul include a new enforcement model that emphasizes proactive powers that are backed up by order-making authorities, including:

  • involuntary audits
  • issuing binding orders, and
  • impose administrative monetary penalties.

The request for reform of PIPEDA is certainly a hot topic as businesses and organizations await how Canada's status as an adequate country is, or is not affected as a result of Europe's General Data Protection Regulations.

Expect a more aggressive OPC

However, do not expect the OPC to wait for new powers. The Commissioner ended his report to Parliament adding that, beginning today, we can expect a more proactive and aggressive OPC with respect to enforcement. The OPC is sending a signal that complaints to the OPC will no longer be the primary tool and the OPC will be shifting itself as a proactive regulator ready to initiate investigations. The Commissioner reported that a complaint-driven model has its limits:

People are unlikely to file a complaint about something they do not know is happening, and in the age of big data and the Internet of Things, it is very difficult to know and understand what is happening to our personal information. My Office, however, is better positioned to examine these often opaque data flows and to make determinations as to their appropriateness under PIPEDA.

This is an important message. The Commissioner is not waiting for legislative reform and has put businesses and organizations on notice to expect a more active OPC, one that will be on the lookout for "specific issues or chronic problems" that must be addressed – possibly resulting in more Commissioner-initiated investigations.

More information

You can read the OPC's news release here.

You can read the Commissioner's remarks and full Annual Report to Parliament here.

For more information, visit our Privacy and Cybersecurity blog at www.privacyandcybersecuritylaw.com

About Dentons

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com

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. Specific Questions relating to this article should be addressed directly to the author.

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

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

Authors
Events from this Firm
24 Oct 2018, Other, Toronto, Canada

If you build it, claims may come. Join the Dentons Construction group for breakfast and an informative discussion on current topics in construction law.

25 Oct 2018, Other, Montreal, Canada

The EU is reaching the final crunch point in negotiations with the UK over the outline of its future trading relationship and terms of exit from the European Union scheduled for 29th March 2019.

30 Oct 2018, Other, Vancouver, Canada

Jana Mansour and Karen Martin will be taking part in an upcoming Pacific Business & Law Institute program titled ‘Construction Forum: Lessons From Real Life Experience’.

Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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.

Disclaimer

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.

General

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