Canada: Privacy Commissioner Requires Revamp Of Privacy Policies

Last Updated: January 10 2019
Article by Wendy J. Wagner and Reem Zaia

"I consent (subject to what the Privacy Commissioner deems meaningful)": A blueprint for the private sector on meaningful consent for 2019.

"Informational privacy is often equated with secrecy or confidentiality ... Privacy also includes the related but wider notion of control over, access to and use of information" – R. v. Spencer, 2014 SCC at paras. 39 and 40.

With the coming into force of the Guidelines on Meaningful Consent the "Guidelines" on January 1, 2019, private sector companies operating within Canada may need to fundamentally alter their practices and redraft their policies to be compliant with law.

According to the Guidelines issued by the Office of the Privacy Commissioner of Canada the "OPC", obtaining meaningful consent will require greater transparency about how data is collected, used and disclosed. The OPC also has emphasized that "express consent" is the default, and that implied consent will only be appropriate in limited circumstances.

Today, consent must be informed, voluntary and meaningful – but what does this actually mean?

Meaningful consent is informed by context, leaving organizations with the generic response "it depends on the circumstances". However, what seems clear is that the OPC will not accept policies that use "legalese" and will require companies to go beyond fine print that few consumers have the time, energy, interest or desire to read.

While it is not possible to know exactly what the OPC will require until the Guidelines are applied and interpreted, private sector organizations should review their policies and practices now with a view to implementing the best practices that the OPC has mandated.

The background: "Reasonable expectation of privacy" and "meaningful consent" in Canadian Law

In an age where the collection, use and disclosure of personal information from consumers is considered axiomatic for the development of businesses, the meaning of "consent" to collect, use and disclose has become more muddled than one would hope.  

Given the ease and pace at which information is shared, one might argue that the breadth of information available to companies suggests that consumers have voluntarily relinquished control over the information they disclose.

To the contrary, this theory was laid to rest by the Supreme Court of Canada, which recognizes that informational privacy includes the "wider notion of control over, access to and use of information".1

Relatedly, the Supreme Court of Canada has recently issued several decisions in the criminal law context that address reasonable expectations of privacy and provide an overarching framework for issues such as the scope of implied consent and when an individual will be considered to have "waived" their privacy rights. While the case law in this area engages the criminal law domain, the broader privacy principles and themes contain useful information for the private sector. 

Consider just a few highlights from privacy cases in more recent years, all of which are echoed in the OPC's new Guidelines:

  • R. v. Reeves, 2018 SCC 56: An individual can maintain a reasonable expectation of privacy in a shared device (in this case, a computer). This decision provides that the consent of one user to disclose information to authorities on a computer does not nullify the co-user's reasonable expectation of privacy. "Waiver by one rights holder does not constitute waiver for all rights holders" (para. 52). Organizations should be alive to how this decision impacts consent in the private sector and affects practices such as mining of social media accounts for information relating to "friends", referral programs that ask individuals to provide others' contact information, and the handling of joint accounts between spouses and family members.
  • Royal Bank of Canada v. Trang, 2016 SCC 50: The Court agreed that financial information is "generally extremely sensitive", however, the degree of sensitivity is contextual and must be assessed in relation to related financial information that already exists in the public domain. Here, consent for the purpose of assisting a sheriff in executing a writ of seizure and sale was implicitly given when the mortgage was issued, which provided one bank with the authority to disclose a mortgage discharge statement to another bank.
  • R. v. Marakah, 2017 SCC 59: Lack of control over information is not fatal to a privacy interest. While this decision was made in the context of text messages between co-accused parties, the Court confirmed that individuals can exercise meaningful control over information exchanged via text message by "making choices about how, when and to whom they disclose the information" (para. 39).

Overview of the guidelines: mandatory and "optional" principles for implementation by the private sector

In the Guidelines, the Privacy Commissioner has outlined seven (7) principles to highlight several indicia of meaningful consent. The criteria are in keeping with the evolution of technology and the expectations of privacy consumers have in relation to their data.  

Some guidelines are mandatory and many private sector companies will require at least some revision to existing privacy practices and policies in order to comply. Others are offered as principles that "should be" followed. In practice, many of the "mandatory" versus "optional" principles appear to overlap, with the effect that implementation of all should be considered to the extent they are relevant to the organization and its information handling practices. For ease of reference, the principles are summarized below:

(1) Emphasize Key Elements of Consent ( Mandatory ): This principle requires organizations to place additional emphasis on the following elements when seeking consent from consumers:

  • Explain what personal information is being collected with precision to better inform the consumer;
  • Enumerate third parties with whom personal information will be shared;
  • Explain the purposes for which the information is being collected, used and/or disclosed. Organizations should avoid vague terms. Purposes that are integral to provisions of service should be distinguished from those that are not; and
  • Explain the risks of harm and other consequences: Meaningful risks are those that are more than minimal or merely possible ones. Significant harm includes bodily harm, humiliation, damage to reputation, loss of employment, business or professional opportunities, financial loss, identity theft, negative effects on credit records and damage or loss to property.  These types of consequences should be clearly delineated so individuals are aware of residual risks that remain after mitigation measures are put in place by the organization.

(2) Allow individuals to control the level of detail they get and when ( Should Do ): Information should be presented in a layered format or one that supports user control. The idea is to summarize key points upfront. Consent should not be eternal once provided – choices should be provided throughout the business relationship for individuals to reconsider whether to maintain or withdraw consent.  

(3) Providing clear options to say yes or no ( Mandatory ): Organizations must make clear whether the collection, use or disclosure of information is a condition of service. The consumer must be given choices. If presented as "mandatory", the collection, use and disclosure of personal information must be integral to the provision of the product or service.

(4) Be innovative and creative ( Should Do ): Avoid superimposing paper-based privacy policies online. Take advantage of online platforms including customized mobile interfaces that are user-friendly, interactive online tools and notices that explain why information is being requested (e.g. one's age or location).

(5) Consider the consumer's perspective ( Mandatory ): Consent and accessibility are paramount in communicating with users. Information should be accessible by a range of target audiences and on various devices. 

(6) Make consent a dynamic and ongoing process ( Mandatory ): Consent is not static. Rather, it is dynamic. For example, when revising privacy practices, users must be notified and consent must be obtained prior to the coming into effect date.

Note that periodic auditing of information management practices is encouraged, although not presented as a mandatory requirement.

(7) Be accountable and be ready to demonstrate compliance ( Should Do ): Be prepared to demonstrate compliance with a privacy regulator.2

While these principles appear facially broad, they are designed to provide organizations with flexibility and discretion in determining appropriate forms of consent contingent on the type of information gathered.

In determining what type of consent regime is necessary, organizations should consider the nature of the information that is being collected, used or disclosed in designing consent regimes. For example, while Canadian law does not prescribe information pertaining to one's health, financial well-being, or religiosity as being "sensitive" and therefore requiring express consent, in most contexts, this type of information will reasonably be considered as sensitive. Additionally, sometimes a constellation of information, when compiled and analyzed, can be telling of a consumer's predispositions and values (See for example R. v. Spencer, 2014 SCC 43) and therefore will become sensitive in its context given the nature of its compilation and use.

Practical implications

The Guidelines reflect a normative appreciation for the speed with which information can be obtained and subsequently used in other ways. The Guidelines stand as a reminder to the private sector that the capacity to collect, use and disclose information does not negate one's privacy interest, nor does it abrogate one's ability to withdraw consent.

Practically speaking, the Guidelines will challenge organizations to think more critically about how to simplify legalese in a way that is comprehensible for users who prefer speedy transactions without the fine print. The Guidelines not only will be enforced by the OPC, but more fundamentally, might be expected to shift consumer perceptions regarding the level of transparency offered by organizations with whom they are interacting. Organizations with less voluminous consent regimes that are easily accessible, retrievable throughout the consumers' interaction, and understandable, can be expected to fare well with consumers who are frequently being asked to provide information in exchange for a service.

Importantly, in considering a consent regime, organizations must only collect, use or disclose information for purposes that a reasonable person would consider appropriate in the circumstances. What is "reasonable" maintains a sense of fluidity as organizational structures evolve, markets demand change, and consumer values evolve. However, the OPC appears to take the position that the collection, use and disclosure of personal information may exceed a "reasonableness" threshold if the consumer is required to consent to collection, use and disclosure that is "beyond what is necessary to provide the product or service".3 In that sense, the measure of reasonableness has an objectively verifiable metric.

Consider implementation of these guidelines as a mechanism by which your organization can be transparent and relatable to consumers. Implementation of the Guidelines by the OPC comes at a time when consumer scrutiny of privacy is high and tolerance for opaque policies and practices is low.

Disclaimer: The contents of this article do not constitute legal advice. They are simply meant to provide information to consumers and businesses. As data-gathering mechanisms continue to grow more sophisticated, you may need more specific and nuanced advice.  For legal advice, please do not hesitate to contact our Privacy and Data Management Team.  

Footnote

1 R. v. Spencer, 2014 SCC 43 at para   40.

2 Office of the Privacy Commissioner of Canada, Guidelines for obtaining meaningful consent, accessed online: https://www.priv.gc.ca/en/privacy-topics/collecting-personal-information/consent/gl_omc_201805/#fn19-rf. See also the differences between express and implied consent as highlighted by the overarching guidelines.

3 Ibid.

Read the original article on GowlingWLG.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.

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
 
In association with
Related Topics
 
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