Canada’s federal Personal Information Protection and Electronic Documents Act (PIPEDA) has been a benchmark for businesses in managing personal information. However, for organizations operating in Quebec, the introduction of Law25 (originally Bill 64) has changed the game. Although there’s a foundation of compliance in most companies through PIPEDA, Law25 introduces more rigorous standards. Here’s a roadmap for those who were already compliant with PIPEDA and are navigating the transition to Law25 compliance:
Revisit Consent Mechanisms
Both PIPEDA and Law25 emphasize informed consent. However, Law25 mandates more explicit and clear consent procedures. You must ensure that users are informed not just about data collection but also about the specific purpose for which their data will be used. There is, however, also a new exception to the consent requirement. Businesses can now transfer personal information to another person if this is necessary for a business transaction, i.e., if the recipient requires the information to perform a contractual obligation for the transferring entity. The exact requirement for the consent exception to apply are set out in section 18.3 of Law25. In PIPEDA, there was a proposed business transaction exception, which allowed the transfer of personal information if that was required in order to determine whether to proceed with the transaction or not. This clause allowed for the parties to exchange personal information for example when contemplating an acquisition by one of the other parties.
Automated Decision-Making and Profiling
Specific information obligations apply under Law25 when the business wants to render automated decisions, that is, decisions without any human oversight, on the basis of personal information collected by technological means. Furthermore, the business must inform individuals of technology used to profile, identify, or locate individuals by means of technology that allows for such functionality. In addition, by default, these functionalities must be turned off.
Privacy Impact Assessments (PIAs)
Law25 makes Privacy Impact Assessments mandatory for specific projects. A fundamental step in each PIA is understanding the data the business has. Private AI can help with that step, which can otherwise be difficult, particularly if the business deals with vast amounts of unstructured data. Leveraging its hyper accurate machine learning tool that can identify over 50 entities, classifying personal information in free text, images, audio, video and other unstructured data is simplified to three lines of code. Request an API key.
PIAs under Law25 are now mandatory for cross-border data transfers. These assessments must also assess the foreign jurisdiction to establish whether it provides adequate protection for the personal information transferred there. In addition, businesses must “conduct an assessment of the privacy-related factors of any project of acquisition, development and redesign of an information system or electronic service delivery involving the collection, use, communication, keeping or destruction of personal information.” Businesses need to integrate this practice into their data processing activities.
Right to Portability, to be Forgotten, and to Know the Source of Personal Information
A significant addition in Law25 is the right to data portability and the right to be forgotten. Organizations will need mechanisms to provide users with their data in a structured, standard format and to delete personal data upon request, going beyond PIPEDA’s access and correction rights. The good news is that this requirement is not going to come into force until September 2024. However, whether the regulator will be able to provide guidance by that time remains to be seen, hence compliance might pose challenges. The right to be forgotten in Law25 means the de-indexing of one’s name from a hyperlink attached to it. Another new right under Law25 is the right to request the source of one’s personal information that a business holds on the requestor. This would give the individual enhanced insights in instances where the business collects information from someone other than the individual themselves, which, by the way, is only permitted with consent or under otherwise limited circumstances.
Enhanced Data Breach Reporting
Although PIPEDA introduced mandatory breach reporting in 2018, Law25 has stricter requirements. The criteria for when a breach must be reported, and the associated penalties are more rigorous under Law25. For example, under Law25 the unauthorized use of personal information is now also considered a privacy incident, which was not the case under PIPEDA.
Appoint a Data Protection Officer
While PIPEDA already requires the designation of a person accountable for the business’s compliance with data privacy laws, Law25 assigns this role now by default to the person with the highest authority with the possibility to delegate this role or some of the responsibilities, in writing, to someone else.
Privacy by Default
Law25 now requires that any privacy settings of “technological products” offered to the public have their privacy settings by default set to the highest standard. Explicitly exempted are only cookies. What the regulator had in mind with “technological products” is somewhat unclear, however. No guideline has come out yet that would clarify whether this covers any online services, or has a more limited scope.
Anonymization
In contrast to PIPEDA, which permitted the anonymization of data as an equal alternative to data disposition, under Law25, anonymization is first of all properly defined, but secondly only permitted when there is a “serious and legitimate” reason to do so. Guidelines are again still outstanding to provide more clarity on the exact requirements.
Law25 has this to say about anonymization:
- For the purposes of this Act, information concerning a natural person is anonymized if it is, at all times, reasonably foreseeable in the circumstances that it irreversibly no longer allows the person to be identified directly or indirectly.
Information anonymized under this Act must be anonymized according to generally accepted best practices and according to the criteria and terms determined by regulation.
Consequently, if a business has so far as a default anonymized information rather than disposed of it when the purpose for which the information had been collected has been achieved needs to revisit this decision and scrutinize whether this practice is still justified.
When it comes to the requirement of “best practices,” we’d like to point you to Private AI’s state of the art, AI-driven personal information redaction solution that detects more than 50 different entity types of personal data across 50 languages. The models achieve 99+% accuracy, with structured, semi-structured, as well as unstructured data. You can try our web demo here.
Penalties
The biggest for last: Law25 dramatically enhances the enforcement powers of the privacy commissioner. The new law provides for administrative penalties for less severe violations, and penalties for more severe ones. The maximum penalty is $25 million or, if greater, 4% of the annual turnover of the business found to be in violation. There is also a private right of action, allowing individuals to sue directly for a violation of their rights under Law25.
Conclusion
Transitioning from PIPEDA to Law25 compliance isn’t about reinventing the wheel but refining and recalibrating your data protection measures. With a more rigorous framework, Law25 aims to provide stronger protections for individuals’ personal data. For organizations, while this may require an initial investment in terms of time and resources, the end goal is a more trustful relationship with customers and stakeholders, and a robust position in a privacy-conscious world.
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