The Limits of Data Localization Laws: Trade, Investment, and Data

On the 8th and 9th of June, 2019, the G20 Ministerial Meeting on Trade and Digital Economy took place in Tskuba, Japan. In a Ministerial Statement released after the meeting, the Ministers reaffirmed their commitments to transborder data flows noting that it generates higher productivity, greater innovation, and improved sustainable development, while acknowledging certain challenges related to “privacy, data protection, intellectual property rights, and security”.

Indeed, with the increasing importance of data in everything from cloud computing, the internet of things and big data analytics, the free flow of data is essential to unlocking the full potential of global e-commerce and modern business in data driven economy.

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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The OPC made the announcement on June 11, 2019 and characterized this new consultation as a “re-framing” of the prior, withdrawn one.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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Privacy Commissioner Withdraws Transborder Consultation, Suggests Proactive Audits

On May 22, 2019, the Office of the Privacy Commissioner of Canada (“OPC”) held its annual forum in Toronto, Ontario. Federal Commissioner Daniel Therrien headed the annual forum along with his provincial counterparts Jill Clayton, the Information and Privacy Commissioner of Alberta, and Michael McEvoy, the Information and Privacy Commissioner of British Columbia.

The forum provides the OPC with an opportunity to update practitioners and stakeholders on current and upcoming privacy matters as well provides an opportunity to discuss and share perspectives. Not surprisingly, the topic of transborder data flows dominated the discussion. Here are three key takeaways from the forum.

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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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Privacy Commissioner Issues Supplemental Consultation Paper on Consent for Transborder Data Flows

On April 9, 2019, the Office of the Privacy Commissioner of Canada (“OPC”) 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 in such cases. See our previous post here.

However, the Consultation Paper simply stated the OPC’s position and invited the public’s views, with no indication of why the OPC thought the change was necessary or what the key issues were. Shortly thereafter, the OPC then issued supplemental consultation paper (“Supplemental Consultation Paper”), in which the OPC provided its rationale for its about-face, and posed specific questions for stakeholders to consider.

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Privacy Commissioner Proposes Consent be Required for Transborder Data Flows

On April 9, 2019, the Office of the Privacy Commissioner of Canada (“OPC”) announced it would be holding a stakeholder consultation on transborder data flows. The consultation paper (“Consultation Paper”) proposes a reversal of the two-decades old existing policy on consent.

However, the Consultation Paper simply stated the OPC’s position and invited the public’s views, with no indication of why the OPC thought the change was necessary or what the key issues were. Shortly thereafter, the OPC then issued supplemental consultation paper (“Supplemental Consultation Paper”), in which the OPC provided its rationale for its about-face, and posed specific questions for stakeholders to consider.

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