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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The Privacy Commissioner, Search Engines and the Media – a Battle Over the “Right to be Forgotten”

In 2018, the Office of the Privacy Commissioner of Canada (“OPC”) began a reference to the Federal Court under subsection 18.3(1) of the Federal Courts Act (the “Reference”) in the context of an OPC investigation into a complaint made by an individual against Google. The complainant alleges that Google is contravening the Personal Information Protection and Electronic Documents Act (“PIPEDA”) by continuing to display links to news articles concerning the complainant when his name is searched using Google’s search engine. He requested that Google remove the articles from search results using his name (otherwise known as de-indexing).

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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The OPC made the announcement on June 11, 2019 and characterized this new consultation as a “re-framing” of the prior, withdrawn one.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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