Privacy commissioner pans feds' planned privacy reforms, says changes needed

Published May 12, 2021 4:46 p.m. ET

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OTTAWA -- The federal government’s planned private sector privacy law reforms, promised to give Canadians more control over how companies handle their personal information online, need to be amended or privacy protections will take “a step back,” according to Federal Privacy Commissioner Daniel Therrien.

Months ago the Liberals brought forward new legislation looking to update privacy protections for consumers who are increasingly seeing their personal information accessed, analyzed, and sometimes breached by the businesses they interact with. But if it is to advance, numerous changes are needed in the eyes of Canada’s top privacy watchdog.

“The bill as drafted would be a step back overall because the provisions meant to give individuals more control give them less,” Therrien said in new comments published by his office offering his perspective on the proposed law. He is advocating for privacy to be entrenched as a human right in law.

In November 2020, the government tabled Bill C-11, which amends Canada’s Consumer Privacy Protection Act and the Personal Information and Data Protection Tribunal Act, ushering in a new “Digital Charter Implementation Act.” 

The legislation looks to create a new Consumer Privacy Protection Act that seeks to balance the need of protecting customers personal information with companies’ need to collect, use, or disclose that information for commercial purposes, with new financial penalties for privacy violations.

As part of this new approach, the government wants to force companies to be more transparent and clear in their language about how Canadians’ personal information is handled, used, and shared, before they collect it. As well, under Bill C-11 the Liberals are pledging to allow Canadians to move their information securely from one business or company to another and be able to ask a company to destroy the data they have on them.

The legislation also would set up a Personal Information and Data Protection Tribunal to dole out steep new fines against private sector bad actors, give Therrien’s office new auditing and order-making powers, including being able to compel companies to stop collecting or using people’s data and personal information.

Though, the privacy commissioner is warning that if Bill C-11 passes as currently worded, it would open up the possibility for companies to use people’s personal information without their clear consent under certain exemptions, and lacks proportional accountability for that power.

He also said that in his view, the structure of the proposed new tribunal would be counterintuitive when it comes to offering consumers quick and effective recourse when their data is improperly used.

“The bill would give consumers less control and organizations more flexibility in monetizing personal data, without increasing their accountability,” Therrien said.

Bill C-11 was met with largely favourable reaction from stakeholders when it was first tabled, as The Canadian Press reported at the time.

Therrien is not alone in pointing out potential issues with the bill, with OpenMedia Executive Director Laura Tribe cautioning when the bill was first unveiled, that the legislation would benefit from an updated definition of what consent is required and when it is required.

As well, OpenMedia has voiced apprehension about the broad business exemptions as “a source of potential weakness and concern.”

The bill has yet to pass second reading, but during a recent meeting, MPs on the Access to Information, Privacy and Ethics Committee heard from Therrien on his initial views of the bill, as the committee is poised to be the one to study the legislation once it reaches that legislative stage.

“We are concerned that with the non-discretionary nature of our responsibilities under that bill, we will not be able to both serve complainants and organizations, and focus on harms to Canadians in general,” he told the committee, suggesting his office will need more funding and legal tools to have the capacity to manage the increased workload.

Following up on that appearance, the commissioner— who over his tenure has been outspoken about the lacking state of federal privacy laws and the need for immediate reforms—published a full statement outlining 60 ways that, in his view, the legislation needs work before it will “effectively protect” Canadians’ privacy rights.

Responding to Therrien’s concerns, NDP MP and ethics critic Charlie Angus said that while he agrees there is a need to update Canada’s privacy laws, he is “very concerned that the government is using the legislation to undermine the privacy rights of Canadians in order to protect corporate interests.”

“Privacy rights are fundamental. Clear rules over the consent and taking of private information must be a priority for our government. This proposed bill shows that it is not,” Angus said in a statement. has reached out to the minister responsible for the legislation, Minister of Innovation, Science and Industry Francois-Philippe Champagne, for comment.

Speaking to the bill in the House of Commons on March 26, Champagne called it an “ambitious and comprehensive reform of Canada's framework for protecting the privacy of Canadians while fostering innovation amongst Canadian businesses.”

He said that from his years in business he understands “how critical trust and confidence can be,” and that “in today's digital economy, protecting personal information is key to earning and maintaining that trust.”

During that day’s debate, Conservative MP Earl Dreeshen referenced comments made by Jim Balsillie, the founder of the Centre for Digital Rights, who said that the bill doesn’t do enough to curtail the “mass surveillance or behaviour manipulation the tech industry currently engages in with impunity.” Dreeshen asked what Champagne intends to do to address the flaws in the bill.

In response, the minister said that he is open to hearing from a range of voices on the bill once the committee begins studying it, so that “different voices can be heard in order to strike the right balance.”

Beyond Bill C-11 the federal government has said it plans to move forward in the future with a “comprehensive reform” of Canada’s Privacy Act, which focuses on the federal public sector and which the privacy commissioner oversees.

Therrien’s concerns have arisen as the Liberals are still facing scrutiny over changes to the federal Broadcasting Act in Bill C-10 that look to impose new regulations on social media platforms and streaming services. 

With just four full weeks left of scheduled sitting before the House of Commons takes a months-long summer break, it remains to be seen whether either of these bills will be able to advance much further along in the legislative process, with a slate of other priority pieces of legislation the minority Liberals are focused on passing.

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