The landscape of data protection and privacy has undergone significant transformations worldwide, with Quebec’s Law25 emerging as a pivotal legislative piece within Canada. For many businesses, one of its most crucial aspects revolves around the transfer of personal data outside of Quebec.
Given the borderless nature of digital operations, this provision holds profound implications for businesses and organizations operating both within and outside the province. Considering in particular the fact that data is routinely hosted in cloud environments, it may not even always be obvious that the data is transferred outside of Quebec. In this article, we thus shine a light on not only the requirements to be met in cases of cross-border data transfers, but also on subservice providers businesses need to consider when determining whether the data transfer requirements apply to a particular processing activity.
Rigid Framework for Transfers
Law25 stipulates that personal data originating from Quebec cannot be transferred to a jurisdiction outside the province unless certain conditions are met. These conditions ensure that the data remains protected at a level comparable to what is offered within Quebec. For multinational companies or those using cloud-based services located outside Quebec, this demands a meticulous examination of their data storage and processing practices.
Consent and Transparency
Transparency stands at the forefront of Law25. Before any data transfer outside Quebec can occur, organizations must inform individuals about the possibility of their information being disclosed outside the province and the associated risks. This mandatory transparency enables informed decision-making on the part of the individual.
Evaluating Recipient Jurisdictions
Before transferring data, companies are required to assess the level of data protection in the recipient jurisdiction. The assessment seeks to ensure that the protections in place are substantially similar to those under Law25. This requirement can pose challenges, especially when dealing with jurisdictions with evolving or less rigid data protection regimes.
At this time, the Quebec regulator has not provided any guidance on how such a jurisdiction assessment is to be conducted. We merely know from the text of Law25 that businesses must consider the sensitivity of the information, the purpose of disclosure, the protection measures, including contractual ones, and the legal framework applicable in the recipient jurisdiction, which shall include the personal information protection principles applicable there.
One approach BLG suggested would be to use the framework provided by Quebec’s Secrétariat à la réforme des institutions démocratiques, à l’accès à l’Information et à la laïcité under the Act Respecting Access. Under this approach, the OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data serve as a list of principles against which to assess the foreign jurisdiction. BLG comments that these principles should be expanded to include an assessment of the enforceability of these principles in the recipient jurisdiction. It may further be prudent to consider the socio-economic situation to determine whether the recipient business or its employees could be enticed to sell the personal information received.
Contractual Obligations
Even if the destination jurisdiction offers robust data protection, Law25 mandates that there be a contractual agreement between the data-transferring entity and the recipient. This contract binds the recipient to offer protections equivalent to those in Quebec, ensuring the safeguarding of personal information irrespective of geographical boundaries.
Periodic Reassessment
The dynamism of data protection laws means that what may be compliant today might not be tomorrow. Law25 necessitates periodic re-assessments of recipient jurisdictions to ensure continued compliance. For businesses, this means maintaining an active awareness of global data protection developments.
Potential Business Implications
The stringent data transfer requirements might pose challenges for businesses reliant on global operations or third-party data processors outside Quebec. For example, if a Canadian business uses Salesforce, there may be a question mark behind its Law25 compliance as a result. There’s an evident need to recalibrate strategies, possibly leading to increased operational costs. However, on the flip side, adhering to Law25 can also position a company as a leader in data protection, enhancing its reputation.
Conclusion
Quebec’s Law25 doesn’t just represent a regional shift but echoes a global move towards robust data protection. Its provisions on data transfers outside Quebec highlight the significance of protecting personal information in an increasingly interconnected world. While challenges are evident, they are not insurmountable. With meticulous planning, informed strategies, and an unwavering commitment to privacy, organizations can navigate the complexities of Law25, ensuring the protection of data, irrespective of where it travels.
The safest strategy may, however, be to simply not transfer personal information, or to limit it to the necessary minimum. Private AI provides personal information redaction software unparalleled in accuracy. Trained to detect and redact over 50 entity types of personal information, health information, and payment card information in 52 languages, using the latest advancements in machine learning, the time-consuming work of redacting personal information with high accuracy becomes three lines of code. To see the tech in action, try our web demo, or request an API key to try it yourself on your own data.
