PIPEDA’s Breach of Security Safeguards Regulations now published and open for comments

On June 15, 2015, Bill S-4, the Digital Privacy Act amended the Personal Information Protection and Electronic Documents Act (PIPEDA). Under new sections 10.1 through 10.3 which are not yet in force, the Digital Privacy Act introduces an explicit obligation to notify individuals in cases of breaches, and report to the Office of the Privacy Commissioner of Canada (OPC), “if it is reasonable in the circumstances to believe that the breach creates a real risk of significant harm to an individual.” Additionally, an organization notifying an individual in the event of a breach must also notify any other organization that may be able to mitigate harm to affected individuals and must maintain a record of any data breach that the organization becomes aware of. Bill S-4 allows for additional specifications to be provided via regulations.

A consultation process was then undertaken by the government when preparing these regulations which included the publication of a Consultation Document in March 2016 and A Summary of Consultation Responses in October 2016. The Breach of Security Safeguards Regulations (“Regulations”) were finally published on September 2, 2017, along with a Regulatory Impact Analysis Statement which can be found in the Canada Gazette. The proposed Regulations are open for comments for a period of 30 days. They will come into force at the same time as section 10 of the Digital Privacy Act.

Reporting the Incident to the OPC

Section 2 of the Regulations introduces requirements pertaining to content, form and manner for reporting a breach to the OPC. These requirements come as no surprise as they essentially mirror the information to be included in a Privacy Breach Incident Report, as recommended by the OPC.

Notifying Individuals

Under section 10.1(4) of the Digital Privacy Act, the notification shall contain sufficient information to allow the individual to understand the significance of the breach and to take steps to reduce the risk of harm.

  • Content of Notification

Sections 3 to 5 of the Regulations provide that such notification provided by an organization to an individual affected by a breach of security safeguards must also contain certain information such as a description of the circumstances of the breach, date, information affected, steps that the organization has taken to reduce the risk of harm and steps that the affected individual could take to reduce the risk of harm, a toll-free number or email address that the affected individual can use to obtain further information about the breach, and information about the organization’s internal complaint process and about the affected individual’s right to file a complaint with the OPC.

These requirements are also rather standard and it would appear to be good business practice for organizations affected by a breach to follow this section of the proposed Regulations if they choose to notify affected individuals up until the new sections come into force. Moreover, these requirements essentially mirror the information to be included in a notification to affected individuals as recommended by the OPC in its Key Steps for Organizations in Responding to Privacy Breaches. In this Key Steps document, the OPC further recommends that s ources of information designed to assist individuals in protecting against identity theft (e.g., online guidance on the Office of the Privacy Commissioner’s website and Innovation, Science and Economic Development Canada website) also be included in such notification.

  • Direct vs. Indirect Notifications to Individuals

Direct Notification: With respect to the manner in which organizations must give direct notification to individuals, section 4 of the Regulations specify that direct notification is to be given to the affected individual: (i) by email or any other secure form of communication if the affected individual has consented to receiving information from the organization in that manner; (ii) by letter delivered to the last known home address of the affected individual; (iii) by telephone; or (iv) in person.

We note that the requirement that consent for email notifications must have been obtained by the affected individual, parallels the requirement detailed in the Guidelines for Privacy Breaches of the Government of Canada under the Privacy Act, which states that “The institution should use electronic mail only when the individual has previously consented to the receipt of electronic notices.” A similar requirement is also included in certain U.S. state laws pertaining to breach notification. An email notification may, at least in some situations, be the best method to notify individuals. Hopefully, the notion of “consent to receive electronic notices” will therefore be interpreted in a flexible manner, as including an implicit form of consent — for example in situations where an individual provided his/her email address to the organization and email is the preferred communication method between the parties.

Indirect Notification: The Digital Privacy Act also provides that the notification shall, in prescribed circumstances, “be given indirectly in the prescribed form and manner.” Section 5 of the proposed Regulations suggests that indirect notification may be given to the affected individual by an organization if giving direct notification would cause further harm to the affected individual, if the cost of giving direct notification is prohibitive for the organization or if the organization does not have contact information for the affected individual (or the information that it has is out of date). When indirect notification is authorized, the Regulations require that it be provided either by a conspicuous message posted on the organization’s website for at least 90 days, or by means of an advertisement that is likely to reach the affected individuals.

To read more on this topic (I have co-authored a bulletin on this topic with François Joli-coeur), please click here.

This content has been updated on September 8, 2017 at 11 h 02 min.

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