DLA Piper Intelligence

Data Protection
Laws of the World

Registration

There is no general registration requirement under Canadian Privacy Statutes.

Some registration requirements exist under Quebec privacy laws:

  • Personal information agents, defined as “any person who, on a commercial basis, personally or through a representative, establishes files on other persons and prepares and communicates to third parties credit reports”, must be registered with the CAI
  • Databases of biometric information must be disclosed to and registered with the CAI
Last modified 24 Jan 2022
Law
Canada

In Canada there are 28 federal, provincial and territorial privacy statutes (excluding statutory torts, privacy requirements under other legislation, federal anti-spam legislation, criminal code provisions etc.) that govern the protection of personal information in the private, public and health sectors. Although each statute varies in scope, substantive requirements, remedies and enforcement provisions, they all set out a comprehensive regime for the collection, use and disclosure of personal information.

The summary below focuses on Canada’s private sector privacy statutes:

  • Personal Information Protection and Electronic Documents Act ('PIPEDA')
  • Personal Information Protection Act (Alberta) ('PIPA Alberta')
  • Personal Information Protection Act (British Columbia) ('PIPA BC')
  • An Act Respecting the Protection of Personal Information in the Private Sector ('Quebec Privacy Act'), (collectively, 'Canadian Privacy Statutes')

We expect PIPEDA to be significantly amended or replaced by a new federal statute sometime during this session of Parliament (before October 2025). In the previous session of Parliament, the federal government introduced Bill C-11, which would have replaced PIPEDA with the Consumer Privacy Protection Act (‘CPPA’). The CPPA made it to second reading, but died on the order paper when the 2021 Federal Election was called. The CPPA would have provided additional rights to data subjects (e.g. portability of data), expanded the requirements for valid data subject consent, and set out new monetary penalties of up to 5% of annual global revenue. Bill C-11 faced significant debate, but we expect a new version of the bill to be introduced at some point during this session of Parliament as the Federal Government seeks to align Canadian privacy law with that of California and the European Union.

PIPEDA applies to all of the following:

  • Consumer and employee personal information practices of organizations that are deemed to be a ‘federal work, undertaking or business’ (eg, banks, telecommunications companies, airlines, railways, and other interprovincial undertakings)
  • Organizations who collect, use and disclose personal information in the course of a commercial activity which takes place within a province, unless the province has enacted ‘substantially similar’ legislation (PIPA BC, PIPA Alberta and the Quebec Privacy Act have been deemed ‘substantially similar’)
  • Inter provincial and international collection, use and disclosure of personal information in connection with commercial activity

PIPA BC, PIPA Alberta and the Quebec Privacy Act apply to both consumer and employee personal information practices of organizations within BC, Alberta and Quebec, respectively, that are not otherwise governed by PIPEDA.

The province of Quebec recently enacted a major reform of its privacy legislation with the adoption of Bill 64. Bill 64 received Royal Assent on September 22, 2021, and its various provisions will be coming into force gradually between 2022 and 2024. With Bill 64’s changes, Quebec now has a modern legal framework for privacy that resembles the European GDPR in several key areas.

 

Last modified 24 Jan 2022
Definitions

Definition of personal data

‘Personal information’ includes any information about an identifiable individual (business contact information is expressly “carved out” of the definition of ‘personal information’ in some Canadian privacy statutes).

The Quebec Privacy Act, as modified by Bill 64, has broadened the definition of “personal information” to include any information that allows an individual to be identified indirectly as well as directly.

Definition of sensitive personal data

Not specifically defined in Canadian Privacy Statutes, except for the Quebec Privacy Act.

The Quebec Privacy Act, as modified by Bill 64, defines ‎‎“sensitive personal information” as any information ‎that, by virtue of its nature (e.g. biometric or medical), or because of the context in which it is used or communicated, warrants a high expectation of privacy. The Quebec Privacy Act has stricter consent requirements in certain situations for the use and communication of personal information qualified as sensitive.

Definition of anonymized information

The Quebec Privacy Act, as modified by Bill 64, defines “de-personalized information” as any information which no longer allows the concerned individual to be identified directly.

Definition of biometric information

The Quebec CAI defines “biometric information” as information measured from a person’s unique physical, behavioural or biological characteristics.

Last modified 24 Jan 2022
Authority

In Canada there are 28 federal, provincial and territorial privacy statutes (excluding statutory torts, privacy requirements under other legislation, federal anti-spam legislation, criminal code provisions etc.) that govern the protection of personal information in the private, public and health sectors.  Although each statute varies in scope, substantive requirements,  remedies and enforcement provisions, they all set out a comprehensive regime for the collection, use and disclosure of personal information.

The summary below focuses on Canada’s private sector privacy statutes:

  • Personal Information Protection and Electronic Documents Act ('PIPEDA')
  • Personal Information Protection Act (Alberta) ('PIPA Alberta')
  • Personal Information Protection Act (British Columbia) ('PIPA BC')
  • An Act Respecting the Protection of Personal Information in the Private Sector ('Quebec Privacy Act'), (collectively, 'Canadian Privacy Statutes')

We expect PIPEDA to be significantly amended or replaced by a new federal statute sometime during this session of Parliament (before October 2025). In the previous session of Parliament, the federal government introduced Bill C-11, which would have replaced PIPEDA with the Consumer Privacy Protection Act (‘CPPA’).  The CPPA made it to second reading, but died on the order paper when the 2021 Federal Election was called.  The CPPA would have provided additional rights to data subjects (e.g. portability of data), expanded the requirements for valid data subject consent, and set out new monetary penalties of up to 5% of annual global revenue. Bill C-11 faced significant debate, but we expect a new version of the bill to be introduced at some point during this session of Parliament as the Federal Government seeks to align Canadian privacy law with that of California and the European Union.

PIPEDA applies to all of the following:

  • Consumer and employee personal information practices of organizations that are deemed to be a ‘federal work, undertaking or business’ (e.g. banks, telecommunications companies, airlines, railways, and other interprovincial undertakings)
  • Organizations who collect, use and disclose personal information in the course of a commercial activity which takes place within a province, unless the province has enacted ‘substantially similar’ legislation (PIPA BC, PIPA Alberta and the Quebec Privacy Act have been deemed ‘substantially similar’)
  • Inter provincial and international collection, use and disclosure of personal information in connection with commercial activity

PIPA BC, PIPA Alberta and the Quebec Privacy Act apply to both consumer and employee personal information practices of organizations within BC, Alberta and Quebec, respectively, that are not otherwise governed by PIPEDA.

The province of Quebec recently enacted a major reform of its privacy legislation with the adoption of Bill 64. Bill 64 received Royal Assent on September 22, 2021, and its various provisions will be coming into force gradually between 2022 and 2024. With Bill 64’s changes, Quebec now has a modern legal framework for privacy that resembles the European GDPR in several key areas.

Last modified 24 Jan 2022
Registration

There is no general registration requirement under Canadian Privacy Statutes.

Some registration requirements exist under Quebec privacy laws:

  • Personal information agents, defined as “any person who, on a commercial basis, personally or through a representative, establishes files on other persons and prepares and communicates to third parties credit reports”, must be registered with the CAI
  • Databases of biometric information must be disclosed to and registered with the CAI
Last modified 24 Jan 2022
Data Protection Officers

PIPEDA, PIPA Alberta, and PIPA BC expressly require organizations to appoint an individual responsible for compliance with the obligations under the respective statutes.

Starting September 22, 2023, the Quebec Privacy Act, as modified by Bill 64, will require organizations to appoint a person responsible for the protection of personal information, who is in charge of ensuring compliance with privacy laws within the organization. By default, the person with the highest authority within the organization will be the person responsible for the protection of personal information, however this function can be delegated to any person, including a person outside of the organization.

This person’s responsibilities are broadly defined in the law and include:

  • Approval of the organization’s privacy policy and ‎practices
  • Mandatory privacy assessments
  • Responding to and reporting security breaches, and
  • Responding to and enacting access and ‎rectification rights

The contact information of the person responsible for the protection of personal information must be published online on the website of the organization.

Last modified 24 Jan 2022
Collection & Processing

Canadian Privacy Statutes set out the overriding obligation that organizations only ‎collect, use and disclose personal information for purposes that a reasonable person ‎would consider appropriate in the circumstances.‎

Subject to certain limited exceptions prescribed in the Acts, consent is required for the ‎collection, use and disclosure of personal information.  Depending on the sensitivity of ‎the personal information, consent may be opt in or opt out. Under the Quebec Privacy Act, consent must be “manifest, free, and enlightened”, and implicit or opt-out consent is generally not considered valid.  Organizations must limit ‎the collection of personal information to that which is necessary to fulfil the identified ‎purposes and only retain such personal information for as long as necessary to fulfil the ‎purposes for which it was collected.‎

Each of the Canadian Privacy Statutes have both notice and openness/transparency ‎requirements.  With respect to notice, organizations are generally required to identify ‎the purposes for which personal information is collected at or before the time the ‎information is collected.  With respect to openness/transparency, generally Canadian ‎Privacy Statutes require organizations make information about their personal ‎information practices readily available.‎

All Canadian Privacy Statutes contain obligations on organizations to ensure personal ‎information in their records is accurate and complete, particularly where the information ‎is used to make a decision about the individual to whom the information relates or if the ‎information is likely to be disclosed to another organization.‎

Each of the Canadian Privacy Statutes also provides individuals with the following:‎

  • A right of access to personal information held by an organization, subject to limited ‎exceptions;
  • A right to correct inaccuracies in/update their personal information records; and‎
  • A right to withdraw consent to the use or communication of personal information.

In addition to these rights, the Quebec Privacy Act, as modified by Bill 64, will create a right for individuals to have their personal information deindexed (coming into force September 2023) and to data portability (coming into force September 2024).

Finally, organizations must have policies and practices in place that give effect to the ‎requirements of the legislation and organizations must ensure that their employees are ‎made aware of and trained with respect to such policies.‎

Last modified 24 Jan 2022
Transfer

When an organization transfers personal information to a third party service provider (ie, ‎who acts on behalf of the transferring organization -- although Canadian legislation does not use these terms, the transferring organization would be the “controller” in GDPR parlance, and the service provider would be a “processor”), the transferring organization ‎remains accountable for the protection of that personal information and ensuring ‎compliance with the applicable legislation, using contractual or other means. In particular, the transferring organization is ‎responsible for ensuring (again, using contractual or other means) that the third party service provider appropriately safeguards ‎the data, and would also be required under the notice and openness/transparency ‎provisions to reference the use of third party service providers in and outside of Canada ‎in their privacy policies and procedures.‎

These concepts apply whether the party receiving the personal information is inside or outside Canada. Transferring personal information outside of Canada for storage or processing is generally permitted so long as the requirements discussed above are addressed, and the transferring party notifies individuals that their information may be transferred outside of Canada and may be subject to access by foreign governments, courts, law enforcement or regulatory agencies. This notice is typically provided through the transferring party’s privacy policies.

With respect to the use of foreign service providers, PIPA Alberta specifically requires a ‎transferring organization to include the following information in its privacy policies and ‎procedures:‎

  • The countries outside Canada in which the collection, use, disclosure or storage is ‎occurring or may occur, and
  • The purposes for which the third party service provider outside Canada has been ‎authorized to collect, use or disclose personal information for or on behalf of the ‎organization

Under PIPA Alberta, specific notice must also be provided at the time of collection or ‎transfer of the personal information and must specify:‎

  • The way in which the individual may obtain access to written information about the ‎organization’s policies and practices with respect to service providers outside ‎Canada, and
  • The name or position name or title of a person who is able to answer on behalf of ‎the organization the individual’s questions about the collection, use, disclosure or ‎storage of personal information by service providers outside Canada for or on ‎behalf of the organization.‎

In addition, under the Quebec Privacy Act, an organization must take reasonable steps ‎to ensure that personal information transferred to service providers outside Quebec will ‎not be used for other purposes and will not be communicated to third parties without ‎consent (except under certain exceptions prescribed in the Act). The Quebec Privacy ‎Act also specifically provides that the organization must refuse to transfer personal ‎information outside Quebec where it does not believe that the information will receive ‎such protection.‎

Starting September 22, 2023, the Quebec Privacy Act, as modified by Bill 64, will require all organizations, before transferring personal information outside of the province of Quebec, to conduct data privacy assessments and enact ‎appropriate ‎contractual safeguards to ensure that the information will benefit from adequate protection in the jurisdiction of transfer. These assessments must take into account the sensitivity of the information, the purposes, the level of protection (contractual or otherwise) and the applicable privacy regime of the jurisdiction of transfer. Quebec has decided not to implement a system of ‎adequacy decisions, and ‎therefore assessments will likely be required prior to any ‎cross-jurisdiction transfer.

Last modified 24 Jan 2022
Security

Each of the Canadian Privacy Statutes contains safeguarding provisions designed to protect personal information. In essence, these provisions require organizations to take reasonable technical, physical and administrative measures to protect personal information against loss or theft, unauthorized access, disclosure, copying, use, modification or destruction. These laws do not generally mandate specific technical requirements for the safeguarding of personal information.

Last modified 24 Jan 2022
Breach Notification

Currently, PIPEDA and PIPA Alberta are the only Canadian Privacy Statutes ‎with breach notification requirements.‎ Bill 64 added breach notification requirements to the Quebec Privacy Act, which will come into force on September 22, 2022.

In Alberta, an organization having personal information under its control must, without ‎unreasonable delay, provide notice to the Commissioner of any incident involving the ‎loss of or unauthorized access to or disclosure of  personal information where a ‎reasonable person would consider that there exists a real risk of significant harm to an ‎individual as a result.‎

Notification to the Commissioner must be in writing and include:‎

  • A description of the circumstances of the loss or unauthorized access or disclosure
  • The date or time period during which the loss or unauthorized access or disclosure ‎occurred
  • A description of the personal information involved in the loss or unauthorized access ‎or disclosure
  • An assessment of the risk of harm to individuals as a result of the loss or ‎unauthorized access or disclosure
  • An estimate of the number of individuals to whom there is a real risk of significant ‎harm as a result of the loss or unauthorized access or disclosure
  • A description of any steps the organization has taken to reduce the risk of harm to ‎individuals
  • A description of any steps the organization has taken to notify individuals of the loss ‎or unauthorized access or disclosure, and
  • The name and contact information for a person who can answer, on behalf of the ‎organization, the Commissioner’s questions about the loss of unauthorized ‎access or disclosure

Where an organization suffers a loss of or unauthorized access to or disclosure of ‎personal information as to which the organization is required to provide notice to the ‎Commissioner, the Commissioner may require the organization to notify the individuals ‎to whom there is a real risk of significant harm.  This notification must be given directly ‎to the individual (unless specified otherwise by the Commissioner) and include:‎

  • A description of the circumstances of the loss or unauthorized access or disclosure
  • The date on which or time period during which the loss or unauthorized access or ‎disclosure occurred
  • A description of the personal information involved in the loss or unauthorized access ‎or disclosure
  • 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

The breach notification provisions under PIPEDA are very similar to the breach ‎notification provisions under PIPA Alberta. The main difference is that PIPEDA requires organizations to notify both the affected individuals and the federal regulator if the breach creates a real risk of significant harm to the individuals (whereas PIPA Alberta requires the initial notice only to the regulator, and then to the individuals if the regulator requires it. In practice, many organizations notify affected Albertans regardless of whether the Alberta Commissioner requires (and the Commissioner typically does require it for most reported breaches in any event). Further, under PIPEDA, organizations must also ‎keep a record of ALL information security breaches, even those which do not meet the ‎risk threshold of a “real risk of significant harm.”‎

The new Quebec Privacy Act, as modified by Bill 64, will introduce a number of new obligations in ‎connection with “confidentiality incidents”, which are defined as unauthorized access, use, or communication of personal ‎information, or the loss of such information‎. These include:‎

  • A general obligation to ‎prevent and remedy security incidents
  • The obligation to notify the CAI and the person affected ‎whenever the incident presents a risk of ‎‎“serious ‎injury.” Factors to consider when evaluating the ‎risk of serious injury include the sensitivity of the ‎information ‎concerned, the anticipated consequences of the ‎use of the information and the likelihood ‎that the information will ‎be used for harmful purposes, and
  • The obligation on to keep a register of security ‎incidents, with the CAI having extensive audit rights for the CAI
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Enforcement

Privacy regulatory authorities have an obligation to investigate complaints, as well as the authority to initiate complaints.

Under PIPEDA, a complaint must be investigated by the Commissioner and a report will be prepared that includes the Commissioner’s findings and recommendations. A complainant (but not the organisation subject to the complaint) may apply to the Federal Court for a review of the findings and the court has authority to, among other things, order an organisation to correct its practices and award damages to the complainant, including damages for any humiliation that the complainant has suffered.

Under PIPA Alberta and PIPA BC, an investigation may be elevated to a formal inquiry by the Commissioner resulting in an order. Organisations are required to comply with the order within a prescribed time period, or apply for judicial review. In both BC and Alberta, once an order is final, an affected individual has a cause of action against the organization for damages for loss or injury that the individual has suffered as a result of the breach.

In Alberta and BC, a person that commits an offence may be subject to a fine of not more than CA$100,000. Offences include, among other things, collecting, using and disclosing personal information in contravention of the Act (in Alberta only), disposing of personal information to evade an access request, obstructing the commissioner, and failing to comply with an order.

Similarly, under the Quebec Privacy Act, an order must be complied with within a prescribed time period. An individual may appeal to the judge of the Court of Quebec on questions of law or jurisdiction with respect to a final decision.

A failure to comply with the Quebec Privacy Act's requirements (as currently applicable) in respect of the collection, storage, communication or use of personal information is liable to a fine of up to CA$10,000 and, for a subsequent offence, to a fine up to CA$20,000. Any one who hampers an inquiry or inspection by communicating false or inaccurate information or otherwise is liable to a fine of up to CA$10,000 and, for a subsequent offence, to a fine of up to CA$20,000.

Starting September 22, 2023, the new Quebec Privacy Act, as modified by Bill 64, will introduce much more severe penalties. The ‎maximum penalties will range between CAD 5,000$ and CAD 100,000$ in the ‎case of individuals, and up to ‎between CA$15,000$ and CA$25 million or 4% ‎of ‎worldwide income for the previous fiscal year for organizations‎.‎

There are also statutory privacy torts in various provinces under separate legislation, and Ontario courts have recognized a common-law cause of action for certain privacy torts. Organizations may face litigation (including class action litigation) under these statutory and common-law torts, in addition to any enforcement or claims under Canadian Privacy Statutes.

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Electronic Marketing

Electronic marketing is governed by both Canadian Privacy Statutes (as discussed ‎above), as well as Canada’s Anti-Spam Legislation (CASL).‎

Under CASL it is prohibited to send, or cause or permit to be sent, a commercial ‎electronic message (defined broadly to include text, sound, voice, or image messages ‎aimed at encouraging participation in a commercial activity) unless the recipient has ‎provided express or implied consent and the message complies with the prescribed ‎content and unsubscribe requirements (subject to limited exceptions).‎

What constitutes both permissible express and implied consent is defined in the Act and ‎regulations.  For example, an organization may be able to rely on implied consent when ‎there is an existing business relationship with the recipient of the message, based on:‎

  • A purchase by the recipient within the past two years, or
  • A contract between the organization and the recipient currently in existence or which ‎expired within the past two years

CASL also prohibits the installation of a computer program on any other person's ‎computer system, or having installed such a computer program to cause any electronic ‎messages to be sent from that computer system, without express consent, if the ‎relevant system or sender is located in Canada. In addition, the Act contains anti ‎phishing provisions that prohibit (without express consent) the alteration of transmission ‎data in an electronic message such that the message is delivered to a destination other ‎than (or in addition to) that specified by the sender.‎

CASL also introduced amendments to PIPEDA that restrict 'address harvesting', or the ‎unauthorized collection of email addresses through automated means (i.e., using a ‎computer program designed to generate or search for, and collect, email addresses) ‎without consent. The use of an individual’s email address collected through address ‎harvesting also is restricted.‎

The 'Competition Act' was also amended to make it an offence to provide false or ‎misleading representations in the sender information, subject matter information, or ‎content of an electronic message.‎

CASL contains potentially stiff penalties, including administrative penalties of up to ‎CA$1 million per violation for individuals and CA$10 million for corporations (subject to a ‎due diligence defense). CASL also sets forth a private right of action permitting ‎individuals to bring a civil action for alleged violations of CASL (CA$200 for each ‎contravention up to a maximum of CA$1 million each day for a violation of the ‎provisions addressing unsolicited electronic messages). However, the private right of ‎action is not yet in force, and there is currently little expectation that it will ever come into force.‎

Last modified 24 Jan 2022
Online Privacy

Online privacy is governed by Canadian Privacy Statutes (discussed above). In ‎general, Canadian privacy regulatory authorities have been active in addressing online ‎privacy concerns.‎

For example, in the context of social media, the OPC has released numerous Reports ‎of Findings addressing issues including:‎

  • Default privacy settings
  • Social plug-ins
  • Identity authentication practices
  • The collection, use and disclosure of personal information on social networking sites. ‎The OPC has also released decisions and guidance on privacy in the context of ‎Mobile Apps

In addition, the OPC has released findings and guidelines related to the use of cookies ‎and online behavioral advertising, including findings indicating that information stored by ‎temporary and persistent cookies is considered to be personal information and ‎therefore subject to PIPEDA. The OPC has adopted the same position with respect to ‎information collected in connection with online behavioral advertising.‎

In ‘Privacy and Online Behavioral Advertising’ (the ‘OBA Guidelines’), the OPC stated ‎that it may be permissible to utilize opt-out consent in the context of online behavioral ‎advertising if the following conditions are met:‎

  • Individuals are made aware of the purposes for the online behavioral advertising, at ‎or before the time of collection, in a manner that is clear and understandable
  • Individuals are informed of the various parties involved in the online behavioral ‎advertising at or before the time of collection
  • Individuals are able to opt-out of the practice and the opt-out takes effect ‎immediately and is persistent
  • The information collected is non-sensitive in nature (ie, not health or financial ‎information), and
  • The information is destroyed or made de-identifiable as soon as possible

The OPC has indicated that online behavioral advertising must not be a condition of ‎service and, as a best practice, should not be used on websites directed at children.‎

With respect to location data, such information, whether tied to a static location or a ‎mobile device, is considered to be personal information by Canadian privacy regulatory ‎authorities.  As such, any collection, use or disclosure of location data requires, among ‎other things, appropriate notice and consent. Most of the privacy regulatory authority ‎decisions related to location data have arisen with respect to the use of GPS in the ‎employment context.‎

The Canadian privacy regulatory authorities provide the following test that must be met ‎for the collection of GPS data (and other types of monitoring and surveillance activities):‎

  • Is the data demonstrably necessary to meet a specific need?‎
  • Will the data likely be effective in meeting that need?‎
  • Is the loss of privacy proportional to the benefit gained? ‎
  • Are there less privacy-intrusive alternatives to achieve the same objective?‎

Bill 64 has introduced several changes to the Quebec Privacy Act that will are likely to have significant impacts on online privacy. Starting September 22, 2023, organizations collecting personal information by offering a product or service with privacy parameters must ensure that the highest privacy settings are enabled by default. Additionally, organizations collecting personal information from persons using tracking, localization or profiling technology will have the obligation to inform the person in advance of the use of such technologies, and to inform the person of the method for activating such functions. The use of such technologies will be opt-in only. “Profiling” is broadly defined as the collection and use of personal information in order to evaluate certain characteristics of a person such as workplace performance, economic or financial situation, health, personal preferences or interest, or behaviour.

Last modified 24 Jan 2022
Contacts
Tamara Hunter
Tamara Hunter
Associate Counsel
T +1 604.643.2952
Last modified 24 Jan 2022