Law Times

Law Times • June 7, 2010 FOCUS PAGE 11 Assessing the implications of PIPEDA changes Amendments affect everything from consent provisions to business transactions BY PAUL BRENT For Law Times O ttawa's reintroduced anti-spam bill may have captured more interest among consumers, but beefed-up privacy protections in the form of bill C-29 may have greater long-term impli- cations for most people. As Canadians migrate more of their fi nancial transactions such as banking and buying on- line, the opportunities for per- sonal data to be stolen or acci- dentally disseminated increase. Th e federal government, which has warned that Canada lags behind competitors in terms of embracing the digital econo- my, believes addressing online privacy issues through amend- ments to the Personal Informa- tion Protection and Electronic Documents Act will build con- sumer confi dence. "Our gov- ernment believes that personal information should be no less secure when shared online than anywhere else," Denis Lebel, minister of state for the eco- nomic development agency of Canada for the regions of Que- bec, said in introducing the bill. "Th at is why we are taking steps to ensure it is better protected. Th ese measures will empower and better protect consumers while ensuring that Canadian businesses can continue to com- pete in the global marketplace." Citing "public concerns about the increasing number of data breaches involving per- sonal information," the govern- ment said companies and other organizations will be required to report "material data breach- es" to the privacy commissioner and notify aff ected individuals "where there is a risk of harm." Th e mandatory disclosure — at least to the privacy commission- er — is intended to complement recent identity theft legislation. Th e public reception to the bill has been mixed. Some con- sumer advocates say it gives businesses too much leeway on whether or not to disclose data breaches, while prominent pri- vacy advocate and University of Ottawa law professor Mi- chael Geist describes it as "the anti-privacy privacy bill" and "a huge disappointment." Th at opinion is not shared by Barry Sookman, a partner and co- chairman of McCarthy Tétrault LLP's technology law group. "It beefs up protections to modern- ize it [and] bring it into line with what is developing and corrects some of the problems that were realized with PIPEDA because it was done rather hurriedly in 2000," he says. Besides the obligation to re- port to the privacy commission- er, which mirrors similar legisla- tion in Alberta and some U.S. states, Sookman says notable additions to PIPEDA include: • Specifying the elements of valid consent: "the consent of an individual is only valid if it is reasonable to expect that the individual under- stands the nature, purpose, and consequences of the collection, use or disclosure of personal information to which they are consenting." • Excluding business contact information from being classi- fi ed as personal information. • Creating exceptions for pro- spective and completed busi- ness transactions such as the purchase of an organization or assets; mergers and acquisi- tions; fi nancings and loans; se- curity, lease or licence transac- tions; and other arrangements to conduct a business activity. • Permitting organizations to collaborate with govern- ment institutions, such as law enforcement and se- curity agencies that have requested personal infor- mation, in the absence of a warrant, subpoena or order. "Th ose are progressive, they are eff ective; they will have the desired result," says Sookman. "With respect to organizations Clinic (CIPPIC). Passed last fall, Bill S-4 estab- Changes to PIPEDA are progres- sive, effective, and give clear guidelines, says Barry Sookman. in Canada, organizations will now have clear guidelines as to what they need to do." Th e data breach notifi cation requirement dovetails with Ottawa's recently enacted law on identity theft, says Tamir Israel, staff lawyer with the Ottawa-based Canadian Inter- net Policy and Public Interest lished three new Criminal Code off ences related to identity theft: obtaining and possessing iden- tity information with the intent to use it deceptively, dishonestly or fraudulently in the commis- sion of a crime; traffi cking in identity information; and un- lawfully possessing or traffi ck- ing in government-issued iden- tity documents that contain the information of another person. "It criminalized a lot of the activity that we see as prepara- tory activity leading up to ID theft, which was one of the big challenges that police were fi nding with fi ghting this type of activity," says Israel. In the case of identity theft, CIPPIC also argues that while Bill S-4 does much to address the actions of groups and indi- viduals preparing for and car- rying out such crimes, it does little to remediate the harm caused to consumers. "Once you have been a victim of iden- tity theft, your personal hell has just begun," says David Fewer, director of CIPPIC. Once people's identities have been stolen, they have to embark on a lengthy struggle to re-establish them. "Th e truth of the matter is there is no one out there to help you with that," says Fewer. "Th ere is no one to give you guidance." In response, CIPPIC is lob- bying Ottawa to set up a func- tion in the Offi ce of the Privacy Commissioner or Competition Bureau that would help Canadi- ans in the process of re-establish- ing their identities by providing key contacts and guidance. "Th e private sector, you can understand a little bit that there is caution because there are costs that people are being asked to bear here," says Fewer. "But on the government side, you would think that it would be easy to re-establish your identity documents, but the truth is that it is really hard. Th e government can do a lot more work streamlining the process." LT Finding & Managing Legal Information on the Internet Become a more powerful online researcher with this helpful and practical guide In print and PDF format plus a related blog at http:/ /fli.canadalawbook.ca This is a practical guide for lawyers, judges, law librarians, law students and anyone else interested in finding information online faster and managing it better. Get tips that will help you find both law and related business information faster. This text will also help you stay on top of technology trends, monitor current awareness resources and organize your research for quick retrieval in the future. Learn more about: • • • ORDER your copy today Perfectbound • 188 pp.• May 2010 • $32 P/C 0992010000 • ISBN 978-0-88804-506-5 Non networkable PDF download • $32 P/C 0992010001 • ISBN 978-0-88804-507-2 Networkable PDF download • $128 P/C 0992010002 • ISBN 978-0-88804-507-2 legal information sources browser extensions, free add-ons and plug-ins staying on top of changing information with RSS and other tools Get guidance from an expert The author, David Whelan is the Manager of Legal Information at The Law Society of Upper Canada. He has spent his career working with information and technology. Learn to manoeuvre through online content faster and manage it better with this practical g.uide. Available in PDF format and/or print A networkable version is also available. Call for more information • research organization and retrieval • mobile legal research For a 30-day, no-risk evaluation call: 1.800.565.6967 LT0607 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. WHELAN_Finding and Managing Legal Information (LT 1-3x4).indd 1 www.lawtimesnews.com 6/2/10 11:29:53 AM David W helan …and much more!

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