Monday, 21 December 2020 08:03

The Gutting of Consent in Bill C-11

Written by  Teresa Scassa
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Bill C-11, the bill to reform Canada’s private sector data protection regime, is titled the Digital Charter Implementation Act. The Digital Charter is a 10-point plan set out by the federal government to frame its digital agenda. This is the first of a series of posts that considers Bill C-11 in light of some of the principles of the Digital Charter.

A key pillar of the Digital Charter is “consent”. It states: “Canadians will have control over what data they are sharing, who is using their personal data and for what purposes, and know that their privacy is protected.” A “Fact Sheet” published about Bill C-11 explains: “Modernized consent rules would ensure that individuals have the plain-language information they need to make meaningful choices about the use of their personal information.” How well does this describe what Bill C-11 actually does?

It is now generally well accepted that individuals face an enormous consent burden when it comes to personal information. Personal data is collected from every digitally-enabled transaction; it is collected when we use online platforms and as we surf the internet; it is harvested from our phones, and from every app on our phones; home appliances are increasingly co-opted to harvest data about us; our cars collect and transmit data – the list is endless. There are privacy policies somewhere that govern each of these activities, but we do not have the time to read them. If we did, we would likely struggle to grasp their full meaning. And, in any event, these policies are basically take-it-or-leave-it. Add to this the fact that most people’s preoccupation is necessarily with the actual product or service, and not with the many different ways in which collected data might be used or shared. They are unlikely to be able to fully grasp how all this might at some future point affect them. Consent is thus largely a fiction.

How does Bill C-11 address this problem? It starts by requiring consent, at or before the time that personal information is collected. This consent must be “valid”, and validity will depend on plain language information being provided to the individual about the purpose for the collection, use or disclosure of the information, the way in which it will be collected, used or disclosed, any “reasonably foreseeable consequences” of this collection, use or disclosure, the specific type of personal information to be collected, and the names of any third parties or types of third parties with whom the information may be shared. It requires express consent, unless the organization “establishes that it is appropriate to rely on an individual’s implied consent”. The organization cannot make the provision of a product or service conditional on granting consent to the collection, use or disclosure of personal information, unless that information is necessary to the provision of the product or service. Consent cannot be obtained by fraud or deception. And, finally, individuals have the right to withdraw consent, on reasonable notice, and subject to a raft of other exceptions which include the “reasonable terms of a contract”.

It sounds good until you realize that none of this is actually particularly new. Yes, the law has been tightened up a bit around implied consent and the overall wording has been tweaked. But the basic principles are substantially the same as those in PIPEDA. Some of the tweaks are not necessarily for the better. The plain language list of information required for “valid consent” under Bill C-11 changes PIPEDA’s focus on the ability of the target audience for a product or service to properly grasp the nature, purposes and consequences of the collection, use and disclosure of personal data. By considering the target audience, the PIPEDA language is likely better adapted to things like protecting children’s privacy.

If, as the government seems to suggest, there is a new implementation of the “consent” principle in Bill C-11, it is not to be found in the main consent provisions. These are largely a rehash of PIPEDA, and, to the extent they are different, they are not obviously better.

What has changed – and ever so much for the worse – are the exceptions to consent, particularly the ones found in sections 18 to 21 of Bill C-11. These exceptions are not the long laundry-list of exceptions to consent that were already found in PIPEDA (those have all made their way into Bill C-11 as well). Sections 18 and 19, in particular, are new in Bill C-11, and they can only be seen as enhancing consent if you conceive of consent as a burden that should be largely eliminated.

Essentially, the government has tackled two different public policy issues in one set of provisions. The first issue is the consent burden described above. This can be summed up as: Privacy policies are too long and complex, and no one has time to read them. The legislative solution is to make them shorter by reducing the information they must contain. The second public policy goal is to make it easier for organizations to use the personal data they have collected in new ways without having to go back to individuals for their consent. The solution, though, is to carve out exceptions that address not just new uses of data already collected, but that are broad enough to include the initial collection of data. When these two solutions are combined, the result is quite frankly a data protection disaster.

A first problem is that these exceptions are not just to consent, but to knowledge and consent. In other words, not only does an organization not need to seek consent for the listed activities, it does not even need to inform the individual about them. It is very hard to hold an organization to account for things about which one has no knowledge.

The first set of exceptions to knowledge and consent in section 18 are for “business activities”. Perhaps recognizing that this provision creates a kind of open season on personal data, it begins with important limitations. The exception to knowledge and consent created by this provision is available only where the collection or use of the data is for one of the listed business activities; a reasonable person “would expect such a collection or use for that activity”; and “the personal information is not collected or used for the purpose of influencing the individual’s behaviour or decision.” These are important guard rails. But, as noted above, without knowledge of the collection, use or disclosure, it will be difficult to hold organizations to account.

The list of consent-free activities is open ended – it can be added to by regulation. No doubt this is to make the legislation more responsive to changing practices or circumstances, but it is a mechanism by which the list can expand and grow with relative ease. And some of the listed activities have the potential for dramatic privacy impacts. For example, organizations can collect or use personal data without an individual’s knowledge or consent to reduce their commercial risk. This suggests, shockingly, that financial profiling of individuals without their knowledge or consent is fair game. Organizations may also collect personal data without knowledge or consent “that is necessary for the safety of a product or service that the organization provides or delivers”. In an era of connected cars, appliances, medical devices, and home alarm systems, to give just a few examples, the kinds of information that might fall into this category could be surprising. Even more troubling, though, is the provision that allows for collection and use of personal data for activities “in the course of which obtaining the individual’s consent would be impracticable because the organization does not have a direct relationship with the individual.” No one knows what this really means – because it could mean all kinds of things. I will give just one example below.

The next exception, in section 19, allows an organization to transfer an individual’s personal information to a service provider without their knowledge or consent. Let’s say you go to a company’s website and you need customer service. There is a chatbot available on the site to assist you. The chatbot is part of a suite of digital customer services provided to the company by a service provider, and your personal information is transferred to them without your knowledge or consent to enable them to deliver these services. The service provider, on its own behalf, also wants to improve its chatbot AI by recording the chat transcripts, and possibly by collecting other data from you. Based on the exception mentioned above (where knowledge and consent would be impracticable because the service provider does not have a direct relationship with you), it can do this without your knowledge or consent. And you don’t even know about the service provider in the first place because of the exception in section 19. From a service point of view, it’s all very smooth and seamless. But let’s go back to the Digital Charter statement: “Canadians will have control over what data they are sharing, who is using their personal data and for what purposes, and know that their privacy is protected.” How are you feeling about this now?

In fairness, there are other provisions of the Act that govern transfers of data to service providers to ensure privacy protection and accountability. (I may draw a road map in a later post…you will need one to find these provisions which are scattered throughout the Bill). And, in fairness, there is a ‘transparency’ provision in s. 62(2)(b) that requires organizations to “make available” a “general account of how the organization makes use of personal information”. This explicitly includes “how the organization applies the exceptions to the requirement to obtain consent under this Act.” It is difficult to know what this might look like. But a “general account” being “made available” is not the same as a requirement to provide clear information and obtain consent at or before the time that the data is collected and used.

There are ways to reduce the consent burden and to facilitate legitimate uses of data already collected by organizations other than removing the requirements for knowledge or consent in a broad and potentially open-ended list of circumstances. One of these is the concept of “legitimate interests” in art. 6(1) of the EU’s GDPR. Of course, the legitimate interests of organizations under the GDPR are carefully balanced against the “interests or fundamental rights and freedoms of the data subject.” As noted in an earlier post, recognizing the human rights implications of data protection is something that the federal government is simply not prepared to do.

The bottom line is that Bill C-11, in its current form, does not enhance consent. Instead, it will directly undermine it. At the very least, section 18 must be drastically overhauled.

Teresa Scassa

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