European Union: How Will The EU GDPR Affect Canadian Businesses?

Last Updated: June 19 2018
Article by Molly Reynolds

The new European privacy regime—the General Data Protection Regulation (GDPR) is now in force. Although its broad scope may impose new privacy obligations on a larger number of Canadian businesses, the impact of the GDPR in Canada is unlikely to be significant in the short term. Rather, the influence of EU privacy standards on how Canadian privacy laws are amended and interpreted in the longer term promises to have a more direct impact on Canadian businesses than the GDPR itself.

What You Need To Know

  • GDPR, like Canada's federal privacy law, PIPEDA, imposes obligations on companies which handle personal data: information that can be used to directly or indirectly identify individuals (e.g., name, email address, social networking posts, etc.). It also requires organizations to have consent of the individual to handle their personal data unless certain exceptions apply.
  • GDPR has received substantial attention in Canada because of its extra-territorial application—it purports to extend to organizations based outside the EU that offer goods or services to individuals in the EU or who engage in practices that monitor online behaviour of those in the EU. This is similar to the Canadian privacy regulator's power to enforce PIPEDA against foreign organizations who handle data about Canadians.
  • Although GDPR and PIPEDA share many of the same core tenets, Canadian businesses subject to GDPR will have to comply with several additional substantive obligations, such as the right to be forgotten and the right to object to automated decision making. Organizations who provide services to EU companies may also see these obligations imposed through contractual provisions.

Territorial Scope

As a general guide, three main factors will attract the application of GDPR to Canadian businesses:

  1. the organization has an establishment in the EU (e.g., office or employees); or
  2. the organization offers goods or services to individuals located in the EU; or
  3. the organization engages in activities that monitor the behavior of individuals in the EU (e.g., devices, platforms or apps that track online activity).

The GDPR includes guidance on how to evaluate the application of these factors. Consequently, there are some nuances that must be considered in determining whether a Canadian organization is caught by the EU data protection rules. The legislative intention is not to subject every company with a website that could be accessed from the EU to the GDPR.

GDPR Challenges for Canadian Companies

Under GDPR, data subjects have increased control over their personal information. The GDPR is more extensive than PIPEDA in that it grants data subjects the right to be forgotten and the right to have automated decisions made by a person. Additionally, the GDPR mandates "data mapping" practices and "privacy by design."

The Right to be Forgotten

A data subject can request erasure of their personal data under the following circumstances:

  • the data is no longer necessary to serve the purpose for which it was collected, as outlined by the data controller;
  • the data subject withdraws consent to the processing of their personal data and there is no other legal justification to override the withdrawal; or
  • the data subject objects to their personal data being processed for the purpose of direct marketing.

When a request for erasure is made, the business must inform third party processors of the erasure request. Additionally, if the personal data was made public, the controller must take reasonable steps to inform other controllers of the data subject's request for erasure.

The Right to Object to Automated Profiling-Based Decisions

The GDPR gives data subjects the right not to be subject to decisions based only on automated processing if those decisions produce legal effects for that person or significantly affect him or her. This provision seeks to prevent profiling and to avoid the risks associated with having important decisions, such as those relating to credit applications or e-recruitment practices, made without any human intervention. Businesses should consider, and develop an inventory of, any activities they carry out which may be considered 'profiling'. Furthermore, they should implement review procedures that allow individuals to opt out of data analytics, targeted marketing and other forms of profiling.

Data Mapping

The GDPR requires that businesses maintain a detailed record of how personal information is processed. When working towards compliance with GDPR, businesses should consider whether they monitor what personal information is held, how that information is used within and shared outside the company, how long the information is, or should be retained, who has access to the information internally and externally, and where the information is stored.

Privacy by Design

The concept of "privacy by design" in GDPR involves implementing technical and organizational measures, such as pseudonymization, to minimize processing of personal information and to limit processing to what is necessary to the purpose for which consent was received. Businesses should consider implementing a process for documenting the nature and purpose of personal information processing activities and the safeguards implemented in designing those activities. The reason for doing this would be to minimize data collection, ancillary uses of personal information, and retention beyond the periods required by law or to provide services.

Sanctions for Non-Compliance

Given that the extra-territorial scope of GDPR is not quite as broad as many pundits have claimed, and that the privacy obligations under the new regime are not entirely different from Canadian privacy laws, some businesses may wonder why the GDPR has received so much attention domestically. The answer largely rests on the enforcement powers under the GDPR. Maximum fines for non-compliance with GDPR reach 4% of annual global turnover or €20 million, depending on which is higher. In contrast, the Canadian privacy regulator currently has very limited powers to impose fines for violations of PIPEDA. Many organizations are therefore working to bring their data handling practices in line with GDPR in order to avoid the risk of large fines and preserve their ability to conduct business with EU companies.

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
Pallett Valo LLP
Norton Rose Fulbright Canada LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Pallett Valo LLP
Norton Rose Fulbright Canada 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