Québec’s new privacy bill: a comparison of Bill 64, PIPEDA and the GDPR

On June 12, 2020, the Québec government proposed a significant overhaul of its current privacy laws through the introduction of the highly anticipated Bill 64, An Act to Modernize Legislative Provisions Respecting the Protection of Personal Information (“Bill”). The stated objective of the changes, once passed, is to modernize the protection of personal information and to ensure both the public and private sectors are meeting the obligations that they have to protect the personal information they possess.

Should the Bill pass, both public and private organizations across Québec would see major reforms and significantly increased obligations as to how they hold and protect their customers’ personal data.

The key changes are:

  • Privacy by design obligations for the default settings for companies’ technology  products;
  • More onerous consent requirements;
  • New rights for individuals: data portability, the right to be forgotten and the right to object to automated processing of their personal information;
  • The requirement to appoint a Chief Privacy Officer and establish governance policies and practices;
  • Mandatory breach reporting and notification;
  • Significant penalties could be imposed by the Commission d’accès à l’information (CAI) of up to CA$50,000.00 for individuals, CA$10 million or 2% of worldwide turnover, whichever is greater, and penal sanctions of up to CA$25 million or 4% of worldwide turnover for organizations;
  • A private right of action (in other words, statutory damages resulting from the unlawful infringement of a right under the Québec privacy acts); and
  • The introduction of a “business transaction” exception from consent  that would allow personal information to be disclosed without consent in the course of a business transaction.

In many ways, this proposed reform brings Québec’s privacy laws in line with in the European Union’s General Data Protection Regulation (GDPR). The proposed changes are also conceptually similar to those anticipated as part of the federal Personal Information Protection and Electronic Documents Act (PIPEDA) modernization.

For a full description of Bill 64, read the full article here.

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PRIVACY ISSUES IN SMART CITIES – LESSSONS LEARNED FROM THE WATERFRONT TORONTO – SIDEWALKS PROJECT

Dentons has had the privilege to act as privacy counsel to Waterfront Toronto in the development of the smart community Quayside project with Sidewalk Labs. The experience made clear that no smart city can proceed without social license and that there is no social license without addressing privacy risks.  

Risk #1: Surveillance both from the State and surveillance capitalism.

Digital solutions generally create the risk of law enforcement access to the data they collect. Risk mitigation includes publicly available guidelines to assess law enforcement agencies’ access requests and public transparency reports on how many requests were received, granted or rejected.

Capitalist surveillance particularly arose around the Quayside project because of the link to Alphabet and Google. This must be addressed with procurement contract terms restricting the use of the personal data.    

Risk #2: Collection without valid consent.

Smart cities digital solutions often collect data without consent. To respect the right to privacy, this must be restricted to public sector digital solutions that are demonstrably necessary and private sector solutions with a reasonable business purpose and prominent signage. Otherwise, the collection must be optional, for example through an app.

Risk # 3: Excessive collection of personal data.

The breadth of personal data collection in digital solutions in smart city projects makes it difficult to contain it to what is necessary for specific purposes. To address this risk, Sidewalk Labs had proposed privacy protective technology that “locked” personal data into specific purposes and retention times.

Risk #4: Data breach.

Through intensive public consultations by Waterfront Toronto, we heard the acute concern about data breach. Barcelona, to name one smart city, chose block chain to secure its digital solutions and reassure citizens.

Risk # 5: Data Monetization.

Akin to the issue of surveillance capitalism, the P3 structure generally supporting smart cities creates concerns that the private partner may monetize the personal data collected through the digital solutions. This must be addressed through the procurement contract.

Risk #6: Lack of anonymity for differently abled persons 

Waterfront Toronto had the wisdom of consulting differently abled persons.  In relation to privacy, they made us realise how a solution that may appear anonymous – for example, one that only captures movement in a residential building – may actually be identifying for the one person who moves differently. The privacy lens in a smart community must reflect varied experiences.

Risk #7: Loss of data sovereignty

With exceptions, Canadian privacy law does not prohibit cross border data transfers. In the Quayside project, however, the idea that a city’s data, through a foreign private partner, would be hosted in a foreign jurisdiction under different privacy laws was identified as a significant privacy risk. Mitigation meant requiring storing personal data in Canada.

In short, as privacy counsel, we learned how pivotal privacy is in realizing a smart city project and how integrating privacy to a smart city opens up its extraordinary potential. 

For more information on privacy issues in big cities, please watch our recent webinar “Global Smart Cities & Connected Communities Think Tank Virtual Roundtable: Future of Privacy Concerns” by clicking on this link.

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PIPEDA, disclosure without consent and COVID-19 in Canada

On Saturday April 4, 2020, newspapers in Québec reported the geolocation of a person infected with COVID-19 through cell phone data by the Québec City Police Service (SPVQ). Lawful access was based on section 108 of the Québec Public Health Act, which provides for the issuance of an order by the public health director to “do everything reasonably possible to locate and apprehend the person whose name appears in the order.” As the COVID-19 crisis deepens, it is fair to expect the practice to expand. This article seeks to provide some guidance for an organization facing a request from law enforcement authorities to obtain geolocation data for public health purposes.

The starting point is the prohibition under the Personal Information Protection and Electronic Documents Act (PIPEDA) for an organization to disclose personal information without consent save in exceptional circumstances listed in section 7(3). The exception relevant to COVID-19 is subsection 7(3) (c.1) (ii), allowing an organization to disclose personal information without consent to a government institution that (i) has identified its lawful authority to obtain the information; and (ii) indicated that the disclosure is requested for the purpose of enforcing any law of Canada. Beyond legislative provisions, case law has recognized “exigent circumstances” as grounds for lawful authority. 

In 2016, the Ontario Superior Court went a step further in R. v Rogers Communications siding with Rogers and Telus, which had refused to grant the Peel Regional Police a “tower dump” of cell phone data to investigate a robbery. What is of most relevance here is that the court went beyond recognizing the reasonable expectation of privacy in cell phone data. It also found Rogers and Telus to have a contractual obligation towards their customers to challenge and refuse to comply with a warrant manifestly unconstitutional, as was the case for the requested indiscriminate “tower dump” for the purpose of investigating a robbery. 

The decision shed new light on the exceptions to the prohibition to disclose personal information without consent. It was also a bittersweet victory for the private sector, as the court recognized not only the right of an organization not to comply with a warrant it judges unconstitutional, but also its contractual duty to do so. Here are some parameters that may assist in decision-making in the face of a request for cell phone location data in relation to fighting the spread of COVID-19: 

  1. Don’t just look for warrants. In R. v Spencer, in 2014, the Supreme Court of Canada (SCC) clarified that the exception of 7(3) (c.1) (ii) did not only apply to warrants, but more broadly “to the authority of police to conduct warrantless searches under exigent circumstances or where authorized by a reasonable law.” An access request for cell phone data under public health legislation may be based on other lawful authority than a warrant.
  2. Assess “exigent circumstances.” In 2017, in R. v Paterson, the SCC provided guidance in assessing “exigent circumstances.” The SCC insisted that the circumstances must make obtaining a warrant “impracticable,” they must create a situation of “urgency,” and they must call for immediate action to preserve public safety.
  3. Request identification of lawful authority. Public health legislation creates exceptional powers for government, including those to access personal information for public safety, executed by peace officers. An organization must request identification of lawful authority to obtain the information and specification of the legal provision to be enforced before disclosing without consent.
  4. Notify the customer. Once the information is provided, if notifying the customer would not defeat the purpose of the information request, the right to privacy of the individual calls for notification to ensure transparency and accountability to the customer.
  5. Issue Transparency Reports. As a matter of accountability to customers and openness regarding the protection of personal information, organizations are encouraged to provide Transparency Reports stating how often, and in what circumstances, they provide information about their customers to government authorities. For more information on these reports, the Government of Canada has issued Transparency Reporting Guidelines.

Of course, seeking legal counsel minimizes risk of violating PIPEDA in these unprecedented times. For more information, please contact Chantal BernierKirsten Thompson, or another member of Dentons’ Privacy, Cybersecurity and Data Protection group. 

Privacy law in the context of pandemics

Chantal Bernier, National Practice Leader, Privacy and Cybersecurity, and Trevor Neiman, Dentons Canada, adapting “Pandemics in a Connected World: Integrating Privacy with Public Health Surveillance,” by Chantal  Bernier, Liane Fong and Timothy M. Banks, in the University of New Brunswick Law Journal, volume 66 at page 117.

The ongoing COVID-19 pandemic illustrates and confirms the immense pressures both public and private entities face to widely collect, use and share individuals’ personal health data in order to facilitate a coordinated pandemic response.

Public health interventions include numerous forms of personal data collection, analysis and dissemination. Pandemic response plans will generally call for the active surveillance of ill persons’ symptoms and health status, reporting the identity of ill or suspected ill individuals, and the tracing of anyone who may have come into contact with an infected person.

These responses will invariably reveal details about the actual or suspected ill, as well as information about their friends, neighbours, employers, and social or religious affinity groups, including persons’ names, addresses, personal contacts, travel histories, risk factors and health records.

While public health objectives are an imperative during a pandemic, the ill or assumed ill will be quick to highlight the privacy risks of response measures. Private or public dissemination of personal health information in the efforts to contain COVID-19 have led to discrimination and restrictions on freedom.  

In that light, an effective pandemic response requires commensurate safeguards to protect individual privacy. This article describes the rights and obligations of employers and employees, as well as those of health professionals and patients in relation to protecting privacy while pursuing public health objectives.

1. Privacy and pandemics management in the workplace

Privacy considerations for employers

Employers play a critical role in responding to the spread of COVID-19. Many employers are currently considering various kinds of measures to mitigate the spread of the virus and to safeguard the work environment. Employers are taking precautionary measures, such as excluding access to work premises to employees having traveled abroad and to employees showing symptoms of the virus, or limiting office access to visitors from certain regions of the world. These responses, and many similar measures, necessarily involve the collection, use and disclosure of personal information above what is normally required in the workplace.  

Where employers collect, use and disclose personal information to prevent or manage the risks associated with COVID-19, employers’ actions must be guided by applicable law, including Canada’s privacy legislation. The basic rule across Canada regarding personal information is that it cannot be collected, used or disclosed without consent, unless authorized or required by law.

With this in mind, here are the main rules to follow in the context of a pandemic:

  • As a preliminary rule, employers need to identify the minimal personal information they need to collect from their employees in the management of the COVID-19 pandemic. For example, additional contact information or personal travel plans may be relevant in protecting the workplace from COVID-19, and, therefore, assist in the effort to contain the pandemic. That being said, employers should limit this collection to the bare minimum necessary to fulfill that purpose. Use and disclosure of that personal information must also be minimal, limited to the strict purposes for which the information was collected.
  • Employers should obtain consent for this additional information, albeit with health and safety policies that could justifiably restrict access to the workplace where the employee refuses to provide essential information.
  • The form of consent obtained from employees must take into account the sensitivity of the personal information. Given the highly sensitive nature of health information, explicit consent will likely be required in most circumstances. For consent to be meaningful, employers must provide their employees with sufficient information so that they understand what they are consenting to, including the nature, purpose and consequences of the collection, use and disclosure of their personal health information. Consent will be considered express where it is the result of positive action from the individual.
  • Employers should put in place dedicated security measures to prevent any loss, theft, or unauthorized access, disclosure or use of an employee’s personal information provided in the context of managing the COVID-19 pandemic. In addition, the information must be kept for only as long as it is needed to serve the intended purposes of collection. Guidelines should be developed governing the retention and destruction of the personal information when the organization no longer needs it.

Employers must also apply any special considerations unique to their business. For instance, businesses with global operations should consider the implications of cross-border sharing of personal information. While cross-border sharing of personal information may be essential in a pandemic response to trace ill employees moving between a company’s various locations or offices, the sharing of such information must be implemented with strict safeguards in place. Cross-border sharing carries high risks, as once the personal information enters another jurisdiction, it will become subject to the laws of that jurisdiction. Therefore, measures should be adopted, including regarding the use and disclosure of the personal health information, to ensure that the information will be handled in a manner that meets the standards of Canada’s privacy legislation.

Employers must also consider where they may be unable to obtain consent from employees and how they will achieve their objectives in those circumstances. Where employee consent cannot be obtained, employers may be able to rely, in a narrow set of exigent circumstances, upon exceptions to consent contained in Canada’s privacy legislation. For example, the Canada Personal Information Protection and Electronic Documents Act (PIPEDA) permits the disclosure of personal information without consent, where disclosure is required in an emergency that threatens the health or security of an individual, subject to written notification requirements to the person to whom the information relates. In addition, an organization may disclose personal information to a government institution without that individual’s consent if the institution has made a request for the information, identified its lawful authority to obtain the information, and the disclosure is requested for the purposes of administering any law of Canada or a province.

Privacy considerations for employees

As each individual must play a part in the management of a pandemic in relation to their right to privacy, employees must contend with the broadened need for their employer to collect certain personal information. Responding to the pandemic broadens the justifiable need for personal information and brings some limitation to the right to exercise consent.

The broadened need for personal information  

While employees have the right to privacy in the workplace, employers may require the personal information demonstrably necessary to manage the workplace. The nature of a pandemic will generate a demonstrable need for employers to collect additional personal information from employees to ensure health and safety in the workplace. It follows that employees may be legitimately required to provide personal information and will have to comply as a matter of employee duty.

The notion of consent in a pandemic

While the general rule is that personal information, particularly sensitive information as personal health information is, cannot be collected without consent except in exigent circumstances, employees need to understand that the right to privacy may be lawfully limited where public health and safety imperatives prevail. As mentioned in relation to employers’ rights and obligations, employees must accept that the refusal to consent to provide health information necessary to the management of the pandemic in the workplace, may entail proportionate limitations of their rights as employees, such as denial of access to work premises.

2. Privacy and pandemic management in the health care system

The right to privacy also yields to public interest in the context of the efforts of the health care system in containing a pandemic. One major response to limiting the spread of infection is contact tracing, which is the practice of identifying and monitoring anyone who may have come into contact with an infected person. Specifically, the duty to disclose and the right to share personal information, including across borders, constitute lawful limitations to the right to privacy in a pandemic. That being said, the duty to minimize privacy intrusion and the duty to safeguard the personal information at hand, with due consideration for its sensitivity, are never extinguished.

The duty for patients to disclose

Taking the SARS outbreak as a precedent, the Ontario government designated SARS as a reportable, communicable, and virulent disease under the Ontario Personal Health Information Protection Act (PHIPA). Such a measure gives public health agencies the legislative authority to issue orders to detain and isolate individuals through written orders mandating quarantine.

At the federal level, the Quarantine Act also allows exceptional collection of personal information with the purpose of restricting the spread of a communicable disease. The right to privacy is limited in accordance with section 1 of the Canadian Charter of Rights and Freedoms, meaning “within such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” A duty to disclose can therefore be lawfully created.

Sharing personal information across borders

The privacy risks of sharing personal information across borders cannot be overstated. As the information comes in the hands of a foreign state, it also comes under the scope of that state’s laws of general application, which may or may not correspond to the level of human rights protection Canada affords. Sharing of personal information across borders, even with the imperative objective of containing a pandemic, should be minimal and circumspect to protect privacy.

While certain provincial personal health information protection laws allow cross-border sharing of personal information where the protection of health and safety require it, Canadian health authorities are bound by the World Health Organization’s (WHO) International Health Regulations. They are legally binding and apply to the international sharing of information to contain the rapid international spread of communicable diseases.

The obligation to safeguard

The general safeguarding principle of privacy law requires that personal information be protected at a level commensurate to its sensitivity. For health authorities who must collect and share personal information to respond to the crisis created by the COVID-19 pandemic, the following minimal safeguarding obligations apply:

  • Sharing of personally identified information should be kept to a minimum as demonstrably necessary, resorting instead to pseudonymized information (meaning where the identifying information is replaced by a number or bar code, or other “pseudonym” which can be traced back to the individual in a protected master list), or anonymized (meaning the information can non longer be traced back to an individual) where individual tracing is not necessary.
  • The personal health information shared should be kept exclusively to what is relevant to manage the pandemic. For example, even where individual tracing is necessary, not all health information relating to that patient is relevant and necessary to share in the effort to contain the pandemic.
  • Information sharing agreements should be in place to govern the sharing of personal information and impose the necessary safeguards to mitigate the privacy risks inherent to the sharing of personal information.
  • The sharing of personal information for the containment of a pandemic should be subject to strict prohibition, through the information sharing agreements, of the use of the personal information for any other purpose.
  • Finally, enhanced technological safeguards should be implemented in the wider sharing of personal information as required in the efforts to contain a pandemic.     

Conclusion

There is no question that effective pandemic control requires an exceptional degree of collection, disclosure and analysis of highly sensitive personal information. While we must  accept unusual collection, use and sharing of personal information, the right to privacy still commands minimization of the collection, use and sharing of that information, respect for consent unless overwhelming public interest must prevail and, in all cases, protection of the information to its high level of sensitivity.   

For more information, please contact Chantal Bernier or another member of Dentons’ Privacy and Cybersecurity group.