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Tuesday, 20 September 2016 14:25
The Ontario Supreme Court of Justice has just approved the settlement of a class action law suit against Home Depot over a data privacy breach that took place in 2014. Both the settlement agreement and the decision by Justice Perell offer some interesting insights into privacy class actions in Canada.
Between April 11, 2014 and September 13, 2014 Home Depot’s payment system was hacked by criminals who used malware to skim data from credit card purchases at self-serve stations. When Home Depot discovered the breach it notified potentially affected customers through the French and English press in Canada. It also sent out over half a million emails to potentially affected customers in Canada. The emails apologized for the breach, and confirmed that the malware had been eradicated. Customers were assured that they would not be held responsible for fraudulent charges to their credit card accounts and they were offered free credit monitoring and identity theft insurance.
Although the breach led to complaints against Home Depot being filed with the privacy commissioners of Alberta, Quebec, B.C. and Canada, the commissioners all concluded that Home Depot had not breached their respective private sector data protection statutes. The fact that Home Depot had acted quickly and decisively to notify customers and to offer them protection also clearly influenced Justice Perell in his decision on the settlement agreement. He noted that Home Depot “apparently did nothing wrong”, and that it “responded in a responsible, prompt, generous and exemplary fashion to the criminal acts perpetrated on it by the computer hackers.” (at para 74.)
After the breach, which affected customers in the U.S. and Canada, a number of class action lawsuits were filed in both countries. The U.S.-based suits were consolidated into a single action which led to a settlement. The U.S. agreement was used as a template for the Canadian settlement. Under the terms of the settlement agreement put before Justice Perell, Home Depot admitted no wrongdoing. In exchange for releasing their claims against Home Depot, class members would be entitled to access a settlement fund of $250,000 available to compensate them for any actual expenses incurred as a result of the data breach up to a maximum of $5000 per claimant. The agreement also provides for class members to access free credit monitoring to a cap of $250,000. Justice Perell noted that given the cost of bulk purchases of credit card monitoring, this amount would allow for between 2,500 and 5,000 of the class members to access credit monitoring. In order to be entitled to any funds or credit monitoring, class members would have to file a claim form by October 29, 2016. Under the terms of the agreement, Home Depot would assume the costs of notifying class members and of administering the funds. Any money not distributed from the funds at the end of the claims period could be used to offset these costs. Justice Perell approved these terms of the settlement agreement.
The agreement also provided for a sum of $360,000 plus HST to be paid to the class action lawyers for legal fees, costs and disbursements. Small sums were also provided for in the agreement as honoraria for the representative plaintiffs in the class, although Justice Perell declined to approve these amounts, noting that honoraria were not appropriate in this case. He noted that “Compensation for a representative plaintiff may only be awarded if he or she has made an exceptional contribution that has resulted in success for the class.” (at para 80)
In assessing the settlement agreement, Justice Perell made it clear that the value of the settlement for class members was at most $400,000. He noted that in terms of compensation very little might actually be paid out. No class members would have had to cover the cost of fraudulent credit card charges and, in the time since the breach, there were no documented cases of identity theft related to this breach. He noted that the only information obtained through the hack was credit card information; other identity details used in identity theft such as driver’s licence data or social insurance numbers, were never stolen. He thus found it “highly unlikely” that the $250,000 fund would be used for damage awards. He also expressed doubt whether, given the short deadline in the agreement, the $250,000 fund for identity theft insurance would be used up.
Given the modest value of the settlement agreement, Justice Perell would not approve the $360,000 bill for legal fees and disbursements. Instead, he set the amount at $120,000. He noted that to do otherwise would pay class counsel more than would be received by the class members. He noted as well that in his view the case against Home Depot was very weak: the data breach was the result of a criminal hack; the privacy commissioners had found no wrongdoing on the part of Home Depot; and Home Depot had not attempted to cover it up and instead had acted promptly to notify customers and to help them mitigate any possible harm. Further, he noted that “by the time the actions against Home Depot came to be settled, there were no demonstrated or demonstrable losses by the Class Members” (at para 101). Justice Perell observed that while class counsel may have incurred higher fees than what were being awarded, there is a degree of risk with any class proceeding. He noted that “class counsel should not anticipate that every reasonably commenced class action will be remunerative and a profitable endeavor.” (at para 103)
The result is interesting on a number of fronts. Clearly Home Depot found it less costly to settle than to proceed with the litigation even though Justice Perell seems to be of the view that they would have won their case. The case illustrates just how costly data breaches can be, even for companies that have done nothing wrong and are themselves victims of criminal activities. In terms of the class action law suit, as with many data breaches, proof of actual harm to the class members was difficult to come by, making losses quite speculative. Further, as litigation of this kind tends to proceed slowly, the lack of harm to class members becomes increasingly apparent in cases where there is no evidence that the illegal obtained data has been used by the malefactors. The result in this case suggests that in class action law suits related to privacy breaches, class members who do not suffer actual pecuniary loss should not expect significant payouts; and companies who are not at fault in the breach and who act promptly to assist affected customers may substantially reduce (or eliminate) their liability. These factors may affect decisions by class counsel to launch class action lawsuits where the link between the breach and actual harm is weak, or where defendants are not obviously at fault.
Published in Privacy
Tuesday, 15 March 2016 11:01
The department formerly known as Industry Canada (now Innovation, Science and Economic Development or ISED) has just released a discussion paper that seeks public input on the regulations that will accompany the new data breach notification requirements in the Personal Information Protection and Electronic Documents Act (PIPEDA).
The need to require private sector organizations in Canada to report data breaches was first formally identified in the initial review of PIPEDA carried out in 2007. The amendments to the statute were finally passed into law in June of 2015, but they will not take effect until regulations are enacted that provide additional structure to the notification requirements. The discussion paper seeks public input prior to drafting and publishing regulations for comment and feedback, so please stop holding your breath. It will still take a while before mandatory data breach notification requirements are in place in Canada.
The new amendments to the legislation make it mandatory for organizations to report data breaches to the Privacy Commissioner if those breaches pose “a real risk of significant harm to an individual”. (s. 10.1) An organization must also notify any individuals for whom the breach poses “a real risk of significant harm (s. 10.1(3). The form and contents of these notifications remain to be established by the regulations. A new s. 10.2 of PIPEDA will also require an organization that has suffered a reportable breach to notify any other organization or government institution of the breach if doing so may reduce the risk of harm. For example, such notifications might include ones to credit reporting agencies or law enforcement officials. The circumstances which trigger this secondary notification obligation remain to be fleshed out in the regulations. Finally, a new s. 10.3 of PIPEDA will require organizations to keep records of all data breaches not just those that reach the threshold for reporting to the Privacy Commissioner. In theory these records might enable organizations to detect flaws in their security practices. They may also be requested by the Commissioner, providing potential for oversight of data security at organizations. The content of these records remains to be determined by the new regulations.
From the above, it is clear that the regulations that will support these statutory data breach reporting requirements are fundamentally important in setting its parameters. The ISED discussion paper articulates a series of questions relating to the content of the regulations on which it seeks public input. The questions relate to how to determine when there is a “real risk of significant harm to an individual”; the form and content of the notification that is provided to the Commissioner by an organization that has experienced a breach; the form, manner and content of notification provided to individuals; the circumstances in which an organization that has experienced a breach must notify other organizations; and the form and content or records kept by organizations, as well as the period of time that these records must be retained.
There is certain that ISED will receive many submissions from organizations that are understandably concerned about the impact that these regulations may have on their operations and legal obligations. Consumer and public interest advocacy groups will undoubtedly make submissions from a consumer perspective. Individuals are also welcome contribute to the discussion. Some questions are particularly relevant to how individuals will experience data breach notification. For example, if an organization experiences a breach that affects your personal information and that poses a real risk of harm, how would you like to receive your notification? By telephone? By mail? By email? And what information would you like to receive in the notification? What level of detail about the breach would you like to have? Do you want to be notified of measures you can take to protect yourself? Do you want to know what steps the organization has taken and will take to protect you?
Published in Privacy
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