Swinging the privacy rights pendulum – The recent proposed amendments to Canada’s privacy law regime

Canada’s privacy laws, as they apply to the private sector, are significantly outdated and considered by many as wholly inadequate to address today’s digital economy. Over the past few years, the Federal Government has tabled several proposed laws intended to bring Canada’s privacy law regime into the 21^st century. Those proposals have undergone numerous iterations, the most recent being Bill C-27 – Digital Charter Implementation Act, 2022. If passed, Bill C-27 is expected to overhaul Canada’s privacy laws, including the passing of new legislation called the Consumer Privacy Protection Act (“CPPA”).

Bill C-27 received a First Reading in June 2022 and a Second Reading in April 2023 and is currently undergoing a consultation process before the Standing Committee on Industry and Technology. As part of the consultation process, the Federal Government recently announced draft amendments to the bill. If passed, these amendments will significantly strengthen the privacy rights of Canadians:

1. Recognition of the “fundamental right to privacy” – the CPPA will include several provisions that expressly recognize privacy as a “fundamental right”. This is a significant development, as it would essentially place Canadians’ privacy rights on the same level as Constitutional rights enshrined in the Charter of Rights and Freedoms.
   
2. Recognition and reinforcement of the protection afforded to children – the CPPA will include sections that recognize that “the personal information of minors actively engaged with the digital and data-driven economy is worthy of stronger protection, given their varying levels of capacity to understand how it is used by organizations and the potential long-term implications of such use”. It will also require organizations to consider the special interests of minors when considering whether their personal information should be collected, used or disclosed.
   
3. Increased flexibility for the OPC to reach “compliance agreements” – the CPPA will grant the regulator, the Office of the Privacy Commissioner (“OPC”), the power and flexibility to negotiate and enter into compliance agreements (i.e., settlements) with organizations, which may include payments for non-compliance. These compliance agreements will be negotiated and entered into between the Government and the non-compliant organizations. They will not impact victims’ rights to bring private actions (i.e., lawsuits) against organizations for violating their privacy rights.

Whether these proposed amendments will make it into the final draft of Bill C-27 remains to be seen. If they do, they will require organizations that collect, use and disclose the personal information of Canadians to overhaul their privacy practices and policies.

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Maanit Zemel

Canadian Tech Law at Zemel van Kampen LLP

Maanit Zemel is a founding partner of Zemel van Kampen LLP, a boutique Canadian technology and litigation law firm located in Toronto. Maanit is a leading civil and commercial litigator and Internet lawyer with 20 years of experience. She has particular expertise in Canada’s Anti-Spam Legislation (CASL), online defamation and cyberbullying, e-commerce disputes, and data privacy and cybersecurity law. Maanit has successfully represented clients before all levels of courts and tribunals, including the Supreme Court of Canada. Maanit is also a part-time Adjunct Professor at Toronto Metropolitan University and the University of Toronto, where she teaches courses on Internet Law, International Business Law and Cybercrime.

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Latest posts by Maanit Zemel (see all)

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