Privacy Reform Coming in Light of Big Data

by Bennett Jones LLP
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Canada’s Federal Privacy Commissioner Jennifer Stoddart today released a position paper which offers a roadmap for modernizing Canada’s federal private-sector privacy law, Personal Information Protection and Electronic Documents Act (PIPEDA), so that it more effectively tackles current and future privacy issues.

The paper specifically mentions the need for PIPEDA reform, in light of Big Data. The privacy landscape that existed when PIPEDA began coming into force back in 2001 was dramatically different.

“There was no Facebook, no Twitter and no Google Street View. Phones weren’t smart. ‘The cloud’ was something that threatened picnic plans,” says Commissioner Stoddart.

“The purpose of our privacy law – to balance privacy and legitimate business needs – is no longer being met. The legislation lacks mechanisms strong enough to ensure organizations invest appropriately in privacy. As a result, consumer trust in the digital economy is at risk.”

The recommendations outlined in the new paper include:

  • Stronger enforcement powers: Options include statutory damages to be administered by the Federal Court; providing the Privacy Commissioner with order-making powers and/or the power to impose administrative monetary penalties where circumstances warrant.
  • Breach notification: Require organizations to report breaches of personal information to the Privacy Commissioner and to notify affected individuals, where warranted. Penalties should be applied in certain cases. A recent poll found that virtually all Canadians – 97 percent – would want to be notified of a breach involving their personal information.
  • Increase transparency: Add public reporting requirements to shed light on the use of an extraordinary exception under PIPEDA which allows law enforcement agencies and government institutions to obtain personal information from companies without consent or a judicial warrant for a wide range of purposes, including national security; the enforcement of any laws of Canada, provinces or foreign countries; or investigations or intelligence-gathering related to the enforcement of these laws.
  • Promote accountability: Amend PIPEDA to explicitly introduce “enforceable agreements” to help ensure that organizations meet their commitments to improve their privacy practices following an investigation or audit.

“We live in a global world. Canada needs to ensure its privacy legislation evolves to keep up with laws in other countries with stronger enforcement powers,” says Commissioner Stoddart. “Canada cannot afford to be left behind other jurisdictions, with little in the way of consequences for those that do not respect our privacy law.”

PIPEDA contains a provision requiring a review of the legislation every five years to ensure that the legislation is operating as it should, with the desired effects. The first review began in 2006, and resulted in recommendations from the Standing Committee on Access to Information, Privacy and Ethics (ETHI) to the government. The government responded to the Committee by introducing legislation in 2010, which died on the Order Paper nearly one year later when an election was called. It was later re-introduced as Bill C-12 in the fall of 2011, which, as of the date of this publication, has not passed Second Reading. The second review of PIPEDA is also now overdue.

In 2012, the ETHI Committee studied privacy and social media. On April 23, 2013, the Committee issued its report on Privacy and Social Media in the Age of Big Data, which included recommendations and asked for a government response. The study provided an important opportunity to examine many of the emerging privacy issues related to new technology.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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