Canada: Breach Notification Rules Under GDPR, PIPEDA And PIPA

The breach notification obligations for Canadian organizations will change significantly in 2018: (i) the European Union's General Data Protection Regulation (GDPR) came into force on May 25, 2018; while (ii) new reporting obligations under Canada's Personal Information Protection and Electronic Documents Act (PIPEDA) will come into force on November 1, 2018. To assist Canadian organizations with their potential compliance efforts with respect to same, the following is intended to provide a non-exhaustive, high-level comparison between: (i) the GDPR; (ii) PIPEDA; together with (iii) the Personal Information Protection Act of Alberta (PIPA). While there are important nuances to each of these regulatory frameworks, they broadly draw on fair information practices that result in substantial commonality among them. In fact, a number of elements in Canadian private sector privacy law, especially in the PIPA, have anticipated some provisions in the GDPR.

This article focuses on breach notification requirements. For a more general comparison of these enactments, please see our companion piece here.

GDPR

PIPEDA

PIPA

What event triggers the obligation? Any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data that has been transmitted, stored, or otherwise processed is subject to the breach reporting rules. A breach of security safeguards involving personal information is subject to the breach reporting rules. Any incident involving the loss of or unauthorized access to or disclosure of personal information is subject to the breach reporting rules.
Is there a threshold standard when reporting is mandatory? Notification must be given unless the breach is unlikely to result in a risk to the rights and freedoms of natural persons. An organization must report any breach of security safeguards involving personal information if it is reasonable to believe that the breach creates a real risk of significant harm to an individual. Notification of a breach must be given where a reasonable person would consider that there exists a real risk of significant harm to an individual as a result of the loss, or unauthorized access or disclosure.
Does the law define factors that influence the risk or harm?  No. Definition: "significant harm includes 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."

Factors indicating a real risk of significant harm are the sensitivity of the personal information involved in the breach; and the probability that personal information has been, is being or will be misused.
 No.
Does the law define how quickly one must report? The processor shall notify the controller without undue delay after becoming aware of a personal data breach.

The controller shall, within 72 hours of becoming aware of a breach, notify the supervisory authority.

Where notification is not made within 72 hours, reasons must be given for the delay.

When it would cause undue delay to provide the required information at the same time, the information may be provided in phases.
The notification must be given as soon as feasible after the organization determines that the breach has occurred. Notification must be given without unreasonable delay.
Reporting to the commissioner? Controllers must notify the supervisory authority of the given EU member state. Yes, to the federal Privacy Commissioner (in this column, the "Commissioner"). Yes, to the provincial Information and Privacy Commissioner (in this column, the "Commissioner").
Does the law prescribe what must be reported to the commissioner?

The notice must contain:

  1. a description of nature of personal data breach, including, where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;
  2. the name and contact details of the data protection officer or other contact person;
  3. a description of the likely consequences of the personal data breach; and
  4. a description of the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate possible adverse effects.

The notice must contain:

  1. a description of the circumstances of the breach;
  2. the day on which, or the period during which, the breach occurred;
  3. a description of the personal information involved in the breach;
  4. sufficient information to allow the individual to understand the significance to them of the breach and to take steps, if any are possible, to reduce the risk of harm that could result from it or to mitigate that harm;
  5. an estimate of the number of individuals to whom there is a real risk of significant harm;
  6. a description of any steps the organization has taken to reduce the risk of harm;
  7. a description of any steps the organization has taken to notify individuals of the breach; and
  8. the name of and contact information for a person who can answer, on behalf of the organization, the Commissioner's questions about the breach.

The notice must contain:

  1. a description of the circumstances of the breach;
  2. the day on which, or the period during which, the breach occurred;
  3. a description of the personal information involved in the breach;
  4. an assessment of the risk of harm to individuals as a result of the breach;
  5. an estimate of the number of individuals to whom there is a real risk of significant harm;
  6. a description of any steps the organization has taken to reduce the risk of harm;
  7. a description of any steps the organization has taken to notify individuals of the breach; and
  8. the name of and contact information for a person who can answer, on behalf of the organization, the Commissioner's questions about the breach.
What sanction arises if one fails to report to the commissioner? The supervisory authority of the given EU state may issue orders, warnings, or reprimands (including administrative fines) against a controller or processor. It is an offence to fail to provide notice to the Commissioner, and may result in a fine of up to $100,000 for an organization.

The Court may order the organization to: correct its practices; and publish a notice of any action taken to correct its practices.
It is an offence to fail to provide notice to the Commissioner, and may result in a fine of up to $100,000 for an organization.
Reporting to the individual? When the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons, the controller shall communicate the personal data breach to the data subject without undue delay. An organization shall notify an individual of any breach of security safeguards involving the individual's personal information under the organization's control if it is reasonable in the circumstances to believe that the breach creates a real risk of significant harm to the individual. The Privacy Commissioner may require the organization to notify individuals' of the loss of their personal data.
Does the law address reporting to others? No. An organization that notifies an individual of a breach of security safeguards shall notify any other organization, including government institutions, of the breach if the notifying organization believes that the other organization concerned may be able to reduce the risk of harm. No.
Does the law prescribe what must be reported to the individual? The notice must include:

  • a description,  in clear and plain language, of the nature of the personal data breach;
  • the name and contact details of the data protection officer or other contact person;
  • a description of the likely consequences of the personal data breach; and
  • a description of the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate possible adverse effects.
The notice must include:

  • a description of the circumstances of the breach;
  • the day on which, or period during which, the breach occurred;
  • a description of the personal information that is the subject of the breach;
  • a description of the steps that the organization has taken to reduce the risk of or mitigate any harm to the affected individual;
  • a description of the steps that the affected individual could take to reduce the risk of or mitigate any harm resulting from the breach;
  • 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 notice must include:

  • a description of the circumstances of the breach;
  • the date on which or time period during which the breach occurred;
  • a description of the personal information involved in the breach;
  • a description of any steps the organization has taken to reduce the risk of harm; and
  • contact information for a person who can answer, on behalf of the organization, questions about the loss or unauthorized access or disclosure.
Does the law permit indirect notification of individuals? Yes, provided that notifying the individual or individuals would involve "disproportionate effort."

Yes, provided that:

  • direct notification would be likely to cause further harm to the affected individual;
  • direct notification would be likely to cause undue hardship for the organization; or
  • the organization does not have contact information.
Notification may be given to an individual indirectly if the Commissioner so allows.
What sanction arises if one fails to report to the individual?

The data subject has the right to:

  • lodge a complaint with a supervisory authority;
  • an effective judicial remedy against a controller or processor (where the supervisory authority does not handle the complaint within three months); and
  • receive compensation for material or non-material damage suffered.

The Court may order the organization to:

  • correct its practices, pay damages to the complainant, including damages for humiliation; and
  • publish a notice of any action taken to correct its practices.
The Commissioner may make any order it considers appropriate.

The Court may order the organization to pay damages to the complainant for loss or injury.
Does the law mandate record keeping requirements? The controller shall document any personal data breaches, including facts relating to the breach, its effects, and the remedial action taken. This documentation will allow the supervisory authority to verify compliance with the GDPR.
  • Organizations must keep and maintain a record of every breach of security safeguards involving personal information under its control.
  • Records must be kept for 24 months following the date the organization determines that the breach has occurred.
PIPA does not impose any specific requirements to keep records related to breaches.
Does the law contemplate exemptions to the notification responsibilities?

Notice to the individual is not required in any of the following circumstances:

  • the controller has implemented appropriate technical and organizational protection measures, and those measures were applied to the personal data affected by the data breach, in particular those that render the personal data unintelligible to any person who is not authorized to access it, such as encryption;
  • the controller has taken subsequent measures which ensure that the risk to the rights of data subjects is no longer likely to materialize; or
  • it would involve disproportionate effort, in which case there shall instead be a public communication or similar measure whereby the data subjects are informed in an equally effective manner.

The organization is not required to notify the individual of a breach if doing so is prohibited by law.

The organization is not required to notify the Commissioner or the individual if it is not reasonable in the circumstances to believe that the breach creates a real risk of significant harm to the individual.
The organization is not required to give notice to the Commissioner if there is no real risk of significant harm to an individual as a result of the loss or unauthorized access or disclosure of personal information.

The organization is not required to give notice to the individual unless so ordered by the Commissioner.

Bibliography

General Data Protection Regulation, EU Reg 2016/679: http://data.europa.eu/eli/reg/2016/679/oj

Personal Information Protection Act Regulation, Alta Reg 366/2003: http://canlii.ca/t/83gh

Personal Information Protection Act, SA 2003, c P-6.5: http://canlii.ca/t/81qp

Personal Information Protection and Electronic Documents Act, SC 2000, c 5 [PIPEDA] (in force): http://canlii.ca/t/7vwj

PIPEDA (pending amendments): http://laws.justice.gc.ca/eng/acts/P-8.6/nifnev.html

PIPEDA (pending regulations): http://laws.justice.gc.ca/eng/regulations/SOR-2018-64/page-1.html

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
Stephen Burns
Martin P.J. Kratz
Kees L. De Ridder
Similar Articles
Relevancy Powered by MondaqAI
Miller Thomson LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Miller Thomson 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