The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.
The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.
For full contact information and a brief bio, please see David's profile.
The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.
This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.
Thursday, May 03, 2007
The Parliamentary Committee on Access to Information, Privacy and Ethics has just released its report following the five year PIEDA review:
ETHI (39-1) — Fourth Report: STATUTORY REVIEW OF THE PERSONAL INFORMATION PROTECTION AND ELECTRONIC DOCUMENTS ACT (PIPEDA) — Standing Committee on ACCESS TO INFORMATION, PRIVACY AND ETHICS - Committees of the House of Commons
The Standing Committee onACCESS TO INFORMATION, PRIVACY AND ETHICS
has the honour to present its
Pursuant to its mandate under Standing Order 108(2), the Committee has studied a Statutory Review of the Personal Information Protection and Electronic Documents Act (PIPEDA) and agreed to the following report:
The HTML version of this report will be available soon. In the meantime, the Committee is pleased to make available the report entitled STATUTORY REVIEW OF THE PERSONAL INFORMATION PROTECTION AND ELECTRONIC DOCUMENTS ACT (PIPEDA) (.PDF, 262 KB) in printable format.
Here are the recommendations:
The Committee recommends that a definition of “business contact information” be added to PIPEDA, and that the definition and relevant restrictive provision found in the Alberta Personal Information Protection Act be considered for this purpose.
The Committee recommends that PIPEDA be amended to include a definition of “work product” that is explicitly recognized as not constituting personal information for the purposes of the Act. In formulating this definition, reference should be added to the definition of “work product information” in the British Columbia Personal Information Protection Act, the definition proposed to this Committee by IMS Canada, and the approach taken to professional information in Quebec’s An Act Respecting the Protection of Personal Information in the Private Sector.
The Committee recommends that a definition of “destruction” that would provide guidance to organizations on how to properly destroy both paper records and electronic media be added to PIPEDA.
The Committee recommends that PIPEDA be amended to clarify the form and adequacy of consent required by it, distinguishing between express, implied and deemed/opt-out consent. Reference should be made in this regard to the Alberta and British Columbia Personal Information Protection Acts.
The Committee recommends that the Quebec, Alberta and British Columbia private sector data protection legislation be considered for the purposes of developing and incorporating into PIPEDA an amendment to address the unique context experienced by federally regulated employers and employees.
The Committee recommends that PIPEDA be amended to replace the “investigative bodies” designation process with a definition of “investigation” similar to that found in the Alberta and British Columbia Personal Information Protection Acts thereby allowing for the collection, use and disclosure of personal information without consent for that purpose .
The Committee recommends that PIPEDA be amended to include a provision permitting organizations to collect, use and disclose personal information without consent, for the purposes of a business transaction. This amendment should be modeled on the Alberta Personal Information Protection Act in conjunction with enhancements recommended by the Privacy Commissioner of Canada.
The Committee recommends that an amendment to PIPEDA be considered to address the issue of principal-agent relationships. Reference to section 12(2) of the British Columbia Personal Information Protection Act should be made with respect to such an amendment.
The Committee recommends that PIPEDA be amended to create an exception to the consent requirement for information legally available to a party to a legal proceeding, in a manner similar to the provisions of the Alberta and British Columbia Personal Information Protection Acts.
The Committee recommends that the government consult with the Privacy Commissioner of Canada with respect to determining whether there is a need for further amendments to PIPEDA to address the issue of witness statements and the rights of persons whose personal information is contained therein.
The Committee recommends that PIPEDA be amended to add other individual, family or public interest exemptions in order to harmonize its approach with that taken by the Quebec, Alberta and British Columbia private sector data protection Acts.
The Committee recommends that consideration be given to clarifying what is meant by “lawful authority” in section 7(3)(c.1) of PIPEDA and that the opening paragraph of section 7(3) be amended to read as follows: “For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization shall disclose personal information without the knowledge or consent of the individual but only if the disclosure is […]”
The Committee recommends that the term “government institution” in sections 7(3)(c.1) and (d) be clarified in PIPEDA to specify whether it is intended to encompass municipal, provincial, territorial, federal and non-Canadian entities.
The Committee recommends the removal of section 7(1)(e) from PIPEDA.
The Committee recommends that the government examine the issue of consent by minors with respect to the collection, use and disclosure of their personal information in a commercial context with a view to amendments to PIPEDA in this regard.
The Committee recommends that no amendments be made to PIPEDA with respect to transborder flows of personal information.
The Committee recommends that the government consult with members of the health care sector, as well as the Privacy Commissioner of Canada, to determine the extent to which elements contained in the PIPEDA Awareness Raising Tools document may be set out in legislative form.
The Committee recommends that the Federal Privacy Commissioner not be granted order-making powers at this time.
The Committee recommends that no amendment be made to section 20(2) of PIPEDA with respect to the Privacy Commissioner’s discretionary power to publicly name organizations in the public interest.
The Committee recommends that the Federal Privacy Commissioner be granted the authority under PIPEDA to share personal information and cooperate in investigations of mutual interest with provincial counterparts that do not have substantially similar private sector legislation, as well as international data protection authorities.
The Committee recommends that any extra-jurisdictional information sharing, particularly to the United States, be adequately protected from disclosure to a foreign court or other government authority for purposes other than those for which it was shared.
The Committee recommends that PIPEDA be amended to permit the Privacy Commissioner to apply to the Federal Court for an expedited review of a claim of solicitor-client privilege in respect of the denial of access to personal information (section 9(3)(a)) where the Commissioner has sought, and been denied, production of the information in the course of an investigation.
The Committee recommends that PIPEDA be amended to include a breach notification provision requiring organizations to report certain defined breaches of their personal information holdings to the Privacy Commissioner.
The Committee recommends that upon being notified of a breach of an organization’s personal information holdings, the Privacy Commissioner shall make a determination as to whether or not affected individuals and others should be notified and if so, in what manner.
The Committee recommends that in determining the specifics of an appropriate notification model for PIPEDA, consideration should be given to questions of timing, manner of notification, penalties for failure to notify, and the need for a “without consent” power to notify credit bureaus in order to help protect consumers from identity theft and fraud.
The Canadian Privacy Law Blog is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.5 Canada License.