Canada's Privacy and New Anti-spam Laws: What you need to know to comply webinar

1. Canada’s Privacy and New
Anti-spam Laws
What you need to know to comply

2. Topics Include
• An overview of Canada’s federal and provincial
privacy laws
• Storing and transferring personal information
outside Canada
• Video surveillance
• Online behavioural advertising
• How to respond to a data breach
• Canada’s new anti-spam laws
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3. Gowlings at a Glance
• One of Canada’s largest
law firms
• Over 750 professionals
across 10 offices
worldwide
• Recognized expertise in
Business Law, Advocacy
and Intellectual Property
Law
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4. Gowlings at a Glance
www.gowlings.com
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5. Canadian
Privacy Law
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6. Canadian Privacy Law
• The Personal Information Protection and Electronic
Documents Act (PIPEDA) applies to private sector
businesses in most Canadian provinces
• Similar laws apply to information collected in
Québec, British Columbia and Alberta
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7. Canadian Privacy Law
• These laws apply to foreign (non-Canadian
businesses) that collect, use or disclose
personal information about individuals in
Canada, even if the business does not have a
Canadian presence
• Applies to “personal information” – a term that is
broadly defined as “information about an
identifiable individual” (apart from their business
contact information)
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8. Storing and
Transferring
Personal
Information
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9. Storing and Transferring Personal Information
• Privacy laws don’t prevent it, but it is subject to
certain legal obligations:
• Accountability: The organization is responsible for
personal information in its possession and custody,
including that transferred to a third-party service
provider
• Transparency: Canadian customers must be advised
if their personal information is going to be transferred
or stored outside of Canada
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10. Video
Surveillance
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11. Video Surveillance
• PIPEDA and the provincial laws apply to the
capturing of video images in the course of
commercial activity, whether those images
are recorded or not
• “Overt” surveillance:
• Must give clear notice about the use of cameras on
their premises, before people enter the premises
(include information on how they can get access to
their images)
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12. Video Surveillance
• “Covert” surveillance:
• Allowed only in exceptional circumstances where overt
surveillance would compromise the availability and
accuracy of the data, and the collection is for the
purposes of investigating a breach of law or breach of
an agreement
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13. Online
Behavioural
Advertising
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14. Online Behavioural Advertising
• Online Behavioural Advertising:
• Web-based programs that allow businesses to track
consumers’ online activities
e.g., flash cookies, beacons, tracking pixels, etc.
• Contrary to popular belief online behavioural
advertising IS classified as “personal
information”
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15. Online Behavioral Advertising
• Permissible, but subject to regulations:
• Transparency:
• Users must be aware that this tool is being used
• Consumers must be able to “opt out” but still be able to
use the services
• Should not be used on websites targeted at children,
due to their inability to give meaningful consent
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16. How to
Respond to a
Data Breach
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17. How to Respond to a Data Breach
• Federal legislation - PIPEDA
• Voluntary security breach notification
• Guidelines from Federal Privacy Commissioner
• Voluntary but expected
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18. How to Respond to a Data Breach
• The Guidelines state there are four key steps
to consider when responding to a breach:
• Breach containment and preliminary assessment
• Evaluation of the risks associated with the breach
• Notification
• Prevention
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19. How to Respond to a Data Breach
• Alberta Personal Information Protection Act
(PIPA)
• Private sector organizations are required under
mandatory privacy breach notification provisions to
notify the Privacy Commissioner
• Threshold of notification: “real risk of significant harm”
• “Real risk” means “a reasonable degree of likelihood that
the harm could result”
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20. How to Respond to a Data Breach
• Who is responsible for notifying the
commissioner?
• Organization with control of the personal information,
even if the breach occurred at service provider level
• Contents of the report
• How many people affected
• Information released
• Circumstances surrounding the breach
• What mechanisms are in place to protect data
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21. How to Respond to a Data Breach
• If “real risk” is determined, the organization is
required to notify those affected
• The Privacy Commissioner issues a written decision
which is available on their website
• The Privacy Commissioner will provide direction on
what needs to be in the notice
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22. How to Respond to a Data Breach
• Protect your organization from a data breach
• Review privacy policies and procedures regularly
• Train staff on how to prevent breaches
• Create guidelines on what to do if there is a breach
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23. Canada’s New
Anti-spam
Laws
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24. Canada’s New Anti-spam Laws
• Slated to come into effect mid to late 2013
• Canada’s Anti-spam Legislation (CASL) will
apply to “Commercial Electronic Messages,”
prohibiting all but those messages that comply
with its requirements
• The CRTC and Industry Canada take the position
that existing, valid consent may not survive the
transition period
• Organizations will need to seek new consent from
existing mailing lists
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25. Canada’s New Anti-spam Laws
• Electronic messages must contain prescribed
disclosure language
• An unsubscribe mechanism
• CASL applies to:
• An electronic mail account
• An instant messaging account
• A telephone account; or
• Any similar account
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26. Canada’s New Anti-spam Laws
• Messages that may be exempt
• Those sent between employees of an organization
relating to the affairs of the organization
• Messages sent between two organizations with an
existing business relationship relating to their affairs
• Those that respond to an inquiry, complaint, etc.
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27. Canada’s New Anti-spam Laws
• Penalties for violations
• A fine of up to $1,000,000 for a violation by an
individual
• A fine of up to $10,000,000 for a violation by a
corporation
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28. Canada’s New Anti-spam Laws
• Private right of action for persons who allege
they have been affected by a violation
• Compensation equal to the actual loss or damage
suffered; and
• $200 for each contravention, not exceeding
$1,000,000 for each day on which a contravention
occurred
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29. Canada’s New Anti-spam Laws
• How organizations can ensure they comply
• Be aware of requirements for expressed consent
• Why?
• Who is asking?
• Provide contact information (mailing address + telephone
numbers, email or web address)
• State that consent can be withdrawn
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30. Q&A
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31. Thank You
Visit www.gowlings.com
Email: wendy.wagner@gowlings.com
taryn.burnett@gowlings.com
chris.oates@gowlings.com
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