Canada: Consent Is Becoming A Topic Of Conversation Again: Overview Of The Annual Report Of The Office Of The Privacy Commissioner Of Canada

Last Updated: November 15 2017
Article by Karl Delwaide and Antoine Guilmain

At the end of September, the Office of the Privacy Commissioner of Canada (hereinafter, the "Office") filed its annual report with Parliament (PDF) on the Personal Information Protection and Electronic Documents Act  (PIPEDA) regarding the protection of personal information in the federal private sector, as well as regarding the Privacy Act applicable to the personal information processing practices within federal departments and agencies.

Furthermore, the Office identified therein several avenues to align privacy and personal information protection legislation with new information technologies. In his introductory message, Commissioner Daniel Therrien's conclusion on the topic is telling: "Now is the time to instill confidence in Canadians that new technologies will be implemented in their best interest and not be a threat to their rights. Now is the time to reform Canada's critically outdated privacy laws."

Although the Office of the Commissioner's annual report includes a detailed analysis of PIPEDA and the Privacy Act, this bulletin will focus on the developments on the issue of consent. Consent is generally recognized as the "cornerstone" of Canada's privacy laws. As such, organizations must, in accordance with PIPEDA, and subject to certain exceptions, obtain the individual's consent prior to collecting, using, or disclosing his/her personal information. However, recent technological advances (big data, the Internet of things, artificial intelligence, etc.) are making it increasingly difficult to obtain "free and informed" consent from individuals.

Against this background, the authors (in their personal capacity) submitted a brief on the issue entitled: "Consent and Privacy: Look at the Past, Prepare for the Future", in response to a discussion paper issued by the Office of the Commissioner in May 2016. In addition, we also participated in one of the five round tables held by the Office, to put forward our recommendations.

The Office has since consolidated the findings of its extensive consultation and the annual report sets out a clear position on consent. Many of the positions set forth by the Commissioner are consistent with the above brief submitted by the authors, especially the following points:

Our Recommendations 

Position of the Commissioner's Office

Simplified Privacy Policies 

The brief we submitted posed the question, if not the challenge, of striking a balance between the protection of privacy and the reasonable demands of businesses. We found that often privacy policies were overly specific, complex and lengthy. To meet this challenge, the undersigned advanced the "4C rule": consistency, clarity, conciseness and comprehensiveness. The undersigned then recommended that the designing of a consent form that is unique and relatively standardized be considered. Consideration could be given to an interactive document that avoids highly technical language and has a well-organized and pleasant layout.

  • Organizations should inform and familiarize individuals with an informational structure that focuses on:
  • what personal information is collected;
  • the use made of the data sought;
  • data disclosure;
  • how the data is protected;
  • where will the data be stored;
  • the rights to access and correction.

The Office supports the position that individuals must understand the nature, purpose, and consequences of collection, use and disclosure of their data. Privacy policies are becoming lengthier and more complex. Organizations need to find innovative and creative ways to facilitate the consent process.

While organizations must continue to make readily available to individuals complete and understandable information, the following elements must, in order to obtain informed consent, be given particular prominence and be brought to the individual's attention in a user-friendly format and at an appropriate time:

  • what personal information is being collected;
  • who it is being shared with;
  • for what purposes is information collected, used, or shared, including an explanation of purposes that are not integral to the service; and
  • what is the risk of harm to the individual, if any.

No-Go Zones 

The undersigned did not want the Act to define specific no-go zones, except in very specific cases (e.g. genetics). In Canada, privacy laws are built on the model of the organization's "legitimate interest" in collecting, using and disclosing personal information, in addition to requiring the individual's consent to the collection, use and disclosure of personal information (except as specified in the statute). The approach is based on the good faith of the organizations. Thus, an approach based on no-go zones or pre-authorization would, according to the undersigned, be contrary to the philosophy of the law.

Finally, the undersigned felt that the "necessity" criterion could serve as a safeguard at each stage of the collection, use or disclosure of personal information.


The Office shares the view that legislating specific no-go zones would not be ideal, given the fast pace of technological change and innovation. PIPEDA already prohibits inappropriate uses under subsection 5(3), which cannot be overridden by consent.

Needless to say, these uses are broad and subject to interpretation. As a result, the Office will issue guidance under subsection 5(3) explicitly stating what it considers to be inappropriate cases of collection, use or disclosure of personal information from a reasonable person standpoint. Imput will be sought regarding this guidance document. For example, the Office considers that publishing personal information with the intended purpose of charging individuals to pay for its removal from a list would be a purpose that a reasonable person would not consider appropriate. The concept of reasonable expectations of individuals will also be better fleshed out by the Office of the Commissioner.

The Duty to be Informed and to Advise

The undersigned made two observations. First, information technology, whether we're talking about cloud computing, big data or the Internet of Things, are game-changers. Nevertheless, the evolution of technology does not relieve the individual of his duty to inform himself. On the counterpart, organizations must provide intelligible information individuals so that they provide informed consent. In this respect, the undersigned noted that the duty to inform does not overlap with the duty to advise.

Finally, the position taken by the undersigned aims at supporting the search for, and the striking of, a balance: organizations must inform consistently, clearly, concisely and comprehensively; but the individual must also make reasonable efforts to enquire and understand the content.  

The Office notes that it would not be fair to ask consumers to shoulder all the responsibility of having to deconstruct complex data flows in order to make an informed choice. This is why organizations must be transparent about their practices and respectful of the individuals' right to make privacy choices.

Finally, the Office shares the view that a balance should be achieved. It considers that everyone (i.e.: individuals, organizations, regulators and legislators) needs to play their part for privacy to be protected effectively.


The Office also dealt with cases where it would be difficult to obtain the individual's consent directly. Indeed, PIPEDA was drafted at a time when business models were limited to traditional transactional relationships, often bilateral in nature. However, with the emergence of new technologies, such as artificial intelligence, it is becoming increasingly difficult to know how personal information is managed, which undermines the validity and relevance of consent. To address this, three solutions are proposed by the Office:

  • First, the de-identification of data, despite the fear of being able to re-identify it. The Office will, therein, issue guidance on de-identification.
  • Then, the Office recommends that Parliament find a way to modernize the Regulations Specifying Publicly Available Personal Information. Indeed, the Office wants to strike a fine balance between, on the one hand, the fundamental rights of individuals and, on the other, the right to access information in the public interest.
  • Finally, the Office of the Commissioner is examining situations where it is simply impossible to obtain the individual's consent. The Office therefore is suggesting that Parliament amend PIPEDA to introduce new consent exceptions to manage activities where the societal benefits clearly outweigh the privacy incursions, subject to strict conditions and stronger enforcement.

In short, consent remains pivotal to the enforcement of privacy laws. However, the rapid development of technology requires the concept to be overhauled. At the heart of this modernization will be the search for a balance between the protection of personal information and the use of technology: consistency, clarity and conciseness, while remaining as comprehensive as possible -- this is the challenge for organizations in terms of informed consent. New exceptions may be suggested, but they will be limited to cases where the public interest outweighs the protection of privacy and, even then, they will be strictly regulated.

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
Similar Articles
Relevancy Powered by MondaqAI
Lawson Lundell LLP
Borden Ladner Gervais LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Lawson Lundell LLP
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