The COVID-19 pandemic has forced Canadians to stay at home and rely on their devices for far more essential services than they did in the past. The increased demand for digital tools has boosted innovation, fast-tracking the creation of new technology to assist Canadians in different aspects of their daily lives. Unfortunately, Canada’s privacy laws have not undergone similar upgrades to be compatible with our current lifestyle. This has left Canadians vulnerable to the privacy risks that stem from their expanded use of technology.
Canada’s Increased Reliance on Technology in the Pandemic
The necessity for social distancing during the pandemic has made Canadians more reliant on technology for social, occupational, and healthcare purposes. Instead of meeting in-person, friends and family plan virtual meetups through videoconferencing services and other online platforms. Technology is regularly used by employees working-from-home to fulfill their responsibilities without entering the workplace. It is also useful for students, who can pursue e-learning from the safety of their homes. Our healthcare framework has even shifted from visiting the doctor’s office for medical concerns to using telemedicine platforms to communicate with healthcare practitioners.
Although we have upgraded our lifestyle to incorporate technology in everyday interactions, Canada’s privacy laws have not been updated to fit our data-driven society. Prior to the pandemic, the Office of the Privacy Commissioner of Canada (OPC) issued several statements urging the federal government to reform its privacy legislation to combat risks associated with our antiquated legal framework. However, little has been done in response to these statements. With Canadians growing more digitally dependent during the pandemic, the gaps in Canada’s privacy infrastructure are becoming more prominent.
The Risks Associated with Antiquated Laws
In the OPC’s recent annual report to Parliament on the Privacy Act and Personal Information Protection and Electronic Documents Act (PIPEDA), it highlights key legal gaps associated with the use of commercial platform services. Under our current legislation, commercial enterprises may be able to access sensitive information communicated through online platforms. For example, e-learning platforms can capture information regarding students’ learning disabilities and other behavioural issues. Commercial platforms involved in telemedicine services can also access doctor-patient confidential communication. The OPC argues that these gaps, along with other issues, must be remedied by new legislation that guarantees safety when using essential systems.
The OPC advocates for federal legislative reform to maximize the benefits of technology and minimize associated privacy risks. Among the potential areas of reform, the OPC asks the federal government to define privacy as a human right and use this as a starting point to guide new legislation for data-driven technologies. It also requests the federal government to consider empowering the OPC with enforcement mechanisms to make binding orders and impose administrative penalties for non-compliance with the law.
A Sign of Progress
With the recent tabling of Bill C-11, the federal government may have finally provided a meaningful response to the OPC’s call for legislative reform. Bill C-11 presents the first major step in reforming Canada’s privacy regime and will introduce two new statutes: the Consumer Privacy Protection Act and the Personal Information and Data Protection Tribunal Act. These statutes will replace the provisions of PIPEDA that deal with Canadian private sector privacy laws. Among the proposed changes included in Bill C-11, the OPC will be given the ability to make binding orders and recommend administrative monetary penalties of up to 5% of global revenue for companies that do not comply with the orders.
In the OPC’s statement on November 19, 2020, it noted that Bill C-11 features several improvements to Canada’s current privacy legislation. It praised such advancements like the proposed restructuring of PIPEDA and the addition of order-making powers to the OPC’s list of law enforcement tools. However, it also raised several questions regarding the Bill’s effectiveness in protecting privacy in Canada’s evolving digital society. The OPC plans to further assess the adequacy of Bill C-11 before presenting its views to the parliamentary committee that will study the Bill.
Although it may not be on the OPC’s preferred timeline, the gears of legislative reform are finally turning for Canada’s privacy law regime.
Written by Imtiaz Karamat, Osgoode Alumni and Student-at-Law at Deeth Williams Wall LLP.
