By Aydin Farrokhi and Dr. Wael Hassan
In Canada data protection is regulated by both federal and provincial legislation. Organizations and other companies who capture and store personal information are subject to several laws in Canada. In the course of commercial activities, the federal Personal Information Protection and Electronic Documents Act (PIPEDA) became law in 2004. PIPEDA requires organizations to obtain consent from individual whose data being collected, used, or disclosed to third parties. By definition personal data includes any information that can be used to identify an individual other than information that is publicly available. Personal information can only be used for the purpose it was collected and individuals have the right to access their personal information held by an organization.
The compliance and enforcement in PIPEDA may not be strong enough to address big data privacy aspects. The Digital Privacy Act (Also known as Bill S_4) received Royal Assent and now is law. Under this law if it becomes entirely enforced, the Privacy Commissioner can bring a motion against the violating company and a fine up to $100,000.
The Digital Privacy Act amends and expands PIPEDA in several respects:
- The definition of “consent” is updated: It adds to PIPEDA’s consent and knowledge requirement. The DPA requires reasonable expectation that the individual understands what they are consenting to. The expectation is that the individual understands the nature, purpose and consequence of the collection, use or disclosure of their personal data. Children and vulnerable individuals have specific
There are some exceptions to this rule. Managing employees, fraud investigations and certain business transactions are to name a few.
- Breach reporting to the Commissioner is mandatory (not yet in force)
- Timely breach notifications to be sent to the impacted individuals: the mandatory notification must explain the significance of the breach and what can be done, or has been done to lessen the risk of the
- Breach record keeping mandated: All breaches affecting personal information whether or not there has been a real risk of significant harm is mandatory to be kept for records. These records may be requested by the Commissioner or be required in discovery by litigant or asked by the insurance company to assess the premiums for cyber
- Failure to report a breach to the Commissioner or the impacted individuals may result in significant
The federal Privacy Commissioner’s position in personal information transferred to a foreign third party is that transferred information is subject to the laws and regulations of the foreign country and no contracts can override those laws. There is no consent required for transferring personal data to a foreign third party. Depending on the sensitivity of the personal data a notification to the affected individuals that their information may be stored or accessed outside of Canada and potential impact this may have on their privacy rights.
The Freedom of Information and Protection of Privacy Act, the Municipal Freedom of Information and Protection of Privacy Act and Personal Health Information Protection Act are three major legislations that organizations such as government ministries, municipalities, police services, health care providers and school boards are to comply with when collecting, using and disclosing personal information. The office of the Information and Privacy Commissioner of Ontario (IPC) is responsible for monitoring and enforcing these acts.
In big data projects the IPC works closely with government institutions to ensure compliance with the laws. With big data projects, information collected for one reason may be collectively used with information acquired for another reasons. If not properly managed, big data projects may be contrary to Ontario’s privacy laws.