Canada: Privacy Commissioner Gearing Up For Tougher Enforcement

Last Updated: October 13 2017
Article by Imran Ahmad and Kathryn Frelick

On September 21, 2017, in a press conference following the publication of his 2016-17 Annual Report to Parliament on the Personal Information Protection and Electronic Documents Act and the Privacy Act, the Privacy Commissioner (the "Commissioner") announced his plans to shift from a complaints-driven ombudsman enforcement model to one focused on proactive enforcement and compliance. This announcement comes on the heels of the Canadian government publishing proposed regulations relating to the mandatory reporting of privacy breaches under Canada's federal data protection law, the Personal Information and Electronic Documents Act ("PIPEDA"), which will impose significant obligations on organizations collecting, using and disclosing personal identifiable information.

Greater Enforcement Action

The Office of the Privacy Commissioner (the "OPC") received submissions from various stakeholders, held several roundtables across Canada and conducted direct consultations with Canadians through focus groups. The Commissioner found that Canadians fear losing control over their personal information in an increasingly digital age and that changes are needed to restore confidence in how private-sector organizations collect and use their information.

The Commissioner indicated that he would seek legislative amendments to PIPEDA so that he can obtain power to make to make orders and impose administrative monetary penalties. He argued that this would bring Canada in line with many of its provincial and international counterparts – such as the United States and Europe.

Interestingly, the Commissioner indicated that he would not wait for the legislative changes he is demanding and would immediately take steps to improve privacy protections for Canadians, including:

  • Adopting a Proactive Enforcement and Compliance Model. Instead of relying on a complaints-based ombudsman model of privacy protection, this new approach will allow the OPC to identify privacy problems related to complex technologies and proactively address them through involuntary audit mechanisms.
  • Updating Key Guidance for Online Consent. This will include identifying four key elements that must be highlighted in all privacy notices and must be explained in a user-friendly manner to Canadians.
  • Developing New Guidance. This will entail specifying areas where collection, use and disclosure of personal information is strictly prohibited.

The Commissioner will be seeking additional financial resources from the federal government to carry out its proposed expanded mandate.

Mandatory Breach Notification Requirements Coming

In addition to the Commissioner's proposed plans to expand the OPC's enforcement mandate, he will be responsible for enforcing mandatory breach notification and record-keeping requirements, which are likely come into force in the first half of 2018.

In June 2015, the federal government passed Bill S-4 – The Digital Privacy Act (the "DPA"), which modified PIPEDA in several key ways. While most of the amendments came into force when the DPA was passed, provisions relating to mandatory breach notification and record-keeping did not. On September 2, 2017, after much delay, the federal government published proposed Breach of Security Safeguards Regulations ("Breach Regulations") to bring those provisions into force. Once these regulations are finalized, they will impose significant new obligations on organizations should they become subject to a data breach.

Notification Requirements

Under PIPEDA's mandatory reporting and notification regime, organizations that experience a data breach, defined as a loss or unauthorized access or disclosure of personal information resulting from a breach of the organization's security safeguards, must report the incident to the OPC and notify affected individuals where it is reasonable to believe that the breach creates a "real risk of significant harm to the individual".  The term "significant harm" is defined in PIPEDA and includes, among other things, bodily harm, humiliation, damage to reputation or relationships, financial loss, identity theft, negative effects on the credit record and damage to or loss of property.

Reports to the OPC

The Breach Regulations prescribe specific information that must be included in an organization's report to the OPC. The report must include the following items:

  • a description of the circumstances and cause of the breach;
  • the date or period of the breach;
  • a description of the personal information that is the subject of the breach;
  • an estimate of how many individuals are exposed to a "real risk of significant harm";
  • a description of what the organization has done to reduce or mitigate harm;
  • a description of what the organization has or intends to do to notify each individual; and
  • contact information of a person who can answer the Commissioner's questions about the breach.

Notification to Affected Individuals

Notification to affected individuals must also be provided in a prescribed form, as detailed in the Breach Regulations.  Requirements include:

  • a description of the circumstances of the breach;
  • the day on which, or the period during which, the breach occurred;
  • a description of the personal information that is the subject of the breach;
  • a description of the steps taken by the organization to reduce or mitigate the risk of harm to the affected individual resulting from the breach;
  • 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;
  • a toll-free number or email address that the affected individual can use to obtain further information about the breach; and
  • information about the organization's internal complaint process and about the affected individual's right, under PIPEDA, to file a complaint with the Commissioner.

The Breach Regulations prescribe the manner in which direct or indirect notification is provided.  Direct notification can be provided by email (so long as the affected individual has consented to receiving information in this manner), by letter delivered to the last known home address of the affected individual, by telephone, or in person. Indirect notification can be provided in circumstances where: giving direct notification would cause further harm to the affected individual; the cost of giving direct notice is prohibitive to the organization; or the organization does not have the affected individual's up-to-date contact information.  The Breach Regulations provide that indirect notification may be given through a conspicuous message posted to the organization's website or by means of an advertisement that is likely to reach the affected individuals.

Record-Keeping Requirements

The Breach Regulations require organizations to maintain a record of every breach of security safeguard for a minimum of 24 months after the organization has determined that a breach has occurred. These records should be sufficiently detailed and include, among other things, the methodology undertaken and factors considered in determining whether a particular breach met the threshold of "real risk of significant harm." These records will be used by the Commissioner as a means to verify compliance and inform further enforcement action, if required.

Takeaways

Looking at the Commissioner's recent announcement, coupled with the forthcoming mandatory data breach and record-keeping requirements, it is clear that Canadian organizations can expect greater regulatory enforcement action by the OPC when it comes to privacy and data protection.

While a standard of perfection is not required, organizations must be able to demonstrate that they have taken reasonable steps to ensure compliance and implement best practices. In this regard, organizations should start reviewing their existing privacy and data protection protocols and policies and identify any material gaps or issues. This process will inform organizations on what steps need to be taken to ensure regulatory compliance and withstand scrutiny by the OPC.

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 Mondaq.com.

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

Authors
Imran Ahmad
Kathryn Frelick
Similar Articles
Relevancy Powered by MondaqAI
Roper Greyell LLP – Employment and Labour Lawyers
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Roper Greyell LLP – Employment and Labour Lawyers
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