Privacy Commissioner Backs Down on Changes to Cross Border Transfers

The Office of the Privacy Commissioner of Canada (“OPC“) has backed away from attempting to reverse its position on cross border transfers of personal information, saying that at least for now, its guideline for processing data across borders remains unchanged.

The Reversal

The OPC created controversy in its Equifax Finding, wherein it declared that consent was necessary for transfers for processing, a wholesale departure from its previous position. The OPC simultaneously announced it would be holding a stakeholder consultation on transborder data flows. The consultation paper (“Consultation Paper”) proposed a reversal of the two-decades old existing policy on consent.

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Canadian Competition Bureau Calls on Businesses to Provide Information on Anti-competitive Conduct in the Digital Economy

Like regulatory agencies everywhere, Canada’s Competition Bureau (the “Bureau”) is grappling with the fast-changing digital economy and its implications for competition and innovation. The development of new technologies, their rapid uptake by business, and the deployment of new data-driven business models has left regulators – chiefly privacy and competition regulators – examining whether these new types of business models now pose regulatory threats not previously appreciated.

On May 22, 2019 the federal government unveiled a Digital Charter with 10 principles by which the government proposes Canada should adapt to an economy characterized by artificial intelligence and data-driven products and services.

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Use of AI Algorithm Triggers Lawsuit and Countersuit

As artificial intelligence (AI) becomes less of a curiosity and more of an everyday tool, disputes are increasingly arising over its operation and, when things go wrong, the question inevitably arises: whose fault is this and who’s liable? One high-profile example is the ongoing dispute between Hong Kong businessman Samathur Li Kin-kan and London-based Tyndaris Investments, in which Tyndaris is suing its client for $3 million in allegedly unpaid fees. In a countersuit, Mr. Li is claiming $23 million in damages allegedly resulting from Tyndaris’ use of algorithmic trading in managing his portfolio.

Tyndaris Case

The dispute centers around whether Tyndaris misled its client as to the AI’s capabilities, which means that the AI’s performance itself will be adjudicated.

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Defendants Awarded Costs Where Bringing Breach Class Action Was “Questionable”

In the costs motion (Kaplan v. Casino Rama, 2019 ONSC 3310) arising from the litigation regarding the Casino Rama breach, Justice Belobaba awarded costs to the defendant, saying there was neither public interest nor a novel issue sufficient to warrant costs being awarded to the plaintiffs. Justice Belobaba was of the view that the very basis for bringing the class action was questionable, a fact which played a role in the plaintiffs having to pay. This decision may have class counsel more closely scrutinizing the merits of bringing data breach class actions.

Background

In an earlier decision released on May 7, 2019, Justice Belobaba dismissed the plaintiffs’ motion for certification, finding that the proposed class action “collapsed in its entirety” at the common issues stage.

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Privacy Commmissioner Announces New “Re-Framed” Consultation on Transborder Data Flows

In a further development in the on again/off again transborder data flows consultation, the Office of the Privacy Commissioner of Canada (“OPC”) has announced it is on again.

The OPC made the announcement on June 11, 2019 and characterized this new consultation as a “re-framing” of the prior, withdrawn one. Our commentary on the on again/off again process can be found here, here and here.

The OPC said it had decided to change its approach to consultation in light of the publication by the federal government of its Digital Charter on May 21, 2019 which suggested to the OPC that “transborder data flows may be dealt with in an eventual new federal privacy law.”

The OPC is inviting stakeholder views both on how the current law should be interpreted and applied in these contexts, and on how a future law should provide effective privacy protection in the context of transfers for processing.

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New “Digital Charter” Hints at Data Portability, Digital Identity, and Penalties

The federal government announced a new “digital charter” today, emphasizing Canadians’ control over their own personal information and hinting at a “strong enforcement” regime aimed at global internet companies that violate privacy laws.

The digital charter does not have the power of law, but is rather “set of principles that all government policy and legislation will be measured against.” There is no time left in the current federal government’s mandate to reform existing privacy laws and the charter is a halfway measure, signalling to Canadians, and to social media and internet companies especially, that change is coming and what that change might look like.

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Privacy Commissioner Extends Deadline for Transborder Data Flow Consultation

The Office of the Privacy Commissioner of Canada (“OPC”) has announced it will now be accepting comments related to its consultation on transborder data flows until Friday, June 28, 2019.

The discussion document, which was released on April 9, 2019 (see our blog post here, and our blog post about the OPC’s supplemental consultation paper here) reflected a reversal in the OPC’s twenty-year-old policy position on transborder data flows under the Personal Information Protection and Electronic Documents Act (“PIPEDA“).

The OPC has indicated that it intends to provide guidance on disclosures for processing and related consent and accountability requirements.

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