Canada: Canada's New Digital Charter And What This Means For PIPEDA

On May 21, 2019, the Honourable Navdeep Bains, Minister of Innovation, Science and Economic Development, announced the launch of Canada’s own Digital Charter.

Canada’s economy, much like the rest of the world, has become data-driven. While this shift has enabled technology and online data to vastly improve the lives of Canadians in many ways, it has also led to concerns about how personal data is being collected, used and disclosed by businesses and whether businesses are subject to regulations that provide appropriate protection for Canadians. In an era of frequent data breaches, Canadians are well-founded in their anxiety regarding the ways in which their personal information is being handled.

The Canadian government has responded directly to this anxiety by releasing its ten-principle Digital Charter in the hopes of building a foundation of trust for Canadians in the digital sphere. Canadians ought to be able to trust that their personal data is protected, and the government hopes that this Charter will be a step in the right direction.

The Digital Charter focuses on the following ten principles:

  1. Universal Access: all Canadians will have equal opportunity to participate in the digital world and the necessary tools to do so, including access, connectivity, literacy and skills.
  2. Safety and Security: Canadians will be able to rely on the integrity, authenticity and security of the services they use and should feel safe online.
  3. Control and Consent: Canadians will have control over what data they are sharing, who is using their personal data and for what purposes, and know that their privacy is being protected.
  4. Transparency, Portability and Interoperability: Canadians will have clear and manageable access to their personal data and should be free to share or transfer it without undue burden.
  5. Open and Modern Digital Government: Canadians will be able to access modern digital services from the Government of Canada, which are secure and simple to use.
  6. A Level Playing Field: the Government of Canada will ensure fair competition in the online marketplace to facilitate growth of Canadian businesses and affirm Canada’s leadership on digital and data innovation, while protecting Canadian consumers from market abuses.
  7. Data and Digital for Good: the Government of Canada will ensure the ethical use of data to create value, promote openness and improve the lives of people—at home and around the world.
  8. Strong Democracy: the Government of Canada will defend freedom of expression and protect against online threats and disinformation designed to undermine the integrity of elections and democratic institutions.
  9. Free from Hate and Violent Extremism: Canadians can expect that digital platforms will not foster or disseminate hate, violent extremism or criminal content.
  10. Strong Enforcement and Real Accountability: there will be clear, meaningful penalties for violations of the laws and regulations that support these principles.

However, the Digital Charter is not a legal document and therefore, it has no legal status or force. The government must revise current legislation and regulation in order to bring these Charter principles into action, including the Personal Information Protection and Electronic Documents Act (PIPEDA). PIPEDA governs the use of data and personal information by the majority of private businesses in Canada.

As part of the initial set of actions that will be taken to implement the Digital Charter’s principles, Minister Bains announced the government’s proposals to modernize PIPEDA. The government recognizes that in order to ensure that the Digital Charter’s goals can be achieved, PIPEDA needs to mirrors the principles of the Digital Charter and strengthen privacy for the digital age.

The proposal to modernize PIPEDA is broken down into four main sections:

  1. Enhancing individuals’ control;
  2. Enabling responsible innovation;
  3. Enhancing enforcement and oversight; and
  4. Areas of ongoing assessment.

To date, Canadians have been left in the lurch with limited meaningful control over their personal information and privacy of such information. Canadians want – and need – more transparency and more control over how their data is being collected and used.

In Canada’s digital age, new business models and innovative technologies have emerged, and organizations have required (or at least demanded) increased access to personal information to further develop their products and services. While this digital innovation has benefited Canadians, it triggers the need to rethink the level of accountability for businesses who use the personal information of Canadians and to ensure that increased standards of care regarding privacy and security are respected.

PIPEDA’s enforcement model is notorious for lacking teeth. It does not effectively incentivize compliance, nor does it effectively deter offenders. Meaningful enforcement is required to ensure that there are real consequences for businesses that break the law. Heftier financial consequences will motivate businesses to take measures to ensure their compliance with applicable privacy laws.

PIPEDA has been criticized for being both inaccessible and difficult to understand because of its complexity. The government has proposed that PIPEDA be revised to make it easier to understand, and also that the scope of PIPEDA’s application be re-examined to ensure that Canadians are adequately protected.

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.

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