Proposed Quebec privacy law overhaul ‘concerning’: Bell lawyer

Speaking Tuesday morning at an online event, Bell assistant general counsel Ruby Barber said that a proposed overhaul of Quebec's privacy law -- known as Bill 64 -- is "concerning" for a number of reasons, including consent requirements that are too stringent. She said that the proposed law also doesn't recognize the notion of "implied consent;" is too restrictive when it comes to third-party transfers of collected data; too prescriptive with regards to automated decision making, and could violate international trade law. "Many of the provisions look like they were lifted out of the GDPR," Barber said, referring to the European Union's 2018 General Data Protection Regulation (GDPR). While she said Bell welcomes some recent exceptions for obtaining consent added to the bill, the proposed law's formulations around consent are too prescriptive. "Because the act doesn't take into account the concept of implied consent, and also proposes that you would also obtain separate consents, separate from whatever other terms and conditions you have, and you would obtain consent for every purpose," Barber said. A model that includes a framework of implied consent, "which is not the model that is in Bill 64, not the model in GDPR, is better able to take into account the reasonable expectations of individuals," Barber said, and also called for further exceptions to the consent provisions of the bill. "We would need to see -- and I think from a business perspective we would want to see -- additional exceptions to the consent process. So something like legitimate interest, legitimate business purposes," she said. Bill 64, the full name of which is An Act to Modernize Legislative Provisions Respecting the Protection of Personal Information, was introduced in Quebec's National Assembly in June, and includes new enforcement mechanisms of $10 million or two per cent of worldwide turnover, whichever is greater, and penal sanctions of up to $25 million or four per cent of worldwide turnover, according to a analysis of the bill's implications for businesses by the law firm McCarthy Tetrault. Last month the Canadian Marketing Association -- which organized the Tuesday event -- called for the Quebec privacy bill to be adjusted to align more with privacy law in other provinces, and said it too thought the bill was too close to the European GDPR. "The ability of organizations to collect, use and share personal information is key to providing value to consumers, and to ensuring Quebec's innovation and competitiveness," CMA president and CEO John Wiltshire said in the release. "It is important that Quebec's privacy law remain adaptive to a changing business and technology environment." On Tuesday, Barber also said that provisions of the bill around the transfer of information to third parties was concerning. "We often transfer personal information to outsourcers, to other service providers to generate efficiencies to run our business. Bill 64, as it stands, has a number of restrictions on the sharing of information with third parties outside of Quebec," Barber said, explaining that under the bill, only transfers to companies in jurisdictions outside of Quebec with equivalent data protections would be allowed. "This causes considerable concerns with regard to efficient economic growth, and trade," she said. "The Quebec government certainly needs to consider that this type of provision likely violates and the Canada-U.S.-Mexico free trade agreement, so there are trade concerns." Earlier this month, federal privacy commissioner Daniel Therrien noted a number of provinces have started to act on their own after the federal government took too long to update federal privacy laws, and said he was "frustrated for Canadian citizens," referencing delays in updating the Personal Information Protection and Electronic Documents Act (PIPEDA), the federal privacy law governing the private sector. In August, the government of Ontario launched a public consultation on how to update the province's privacy protection laws. In a release at the time, Ontario Government and Consumer Services Minister Lisa Thompson said that the COVID-19 pandemic and the growing use of digital platforms for routine tasks increased the need for an overhaul. “With the increased reliance on these platforms, there is a strong need to build public and consumer confidence and trust in the digital economy. I encourage all Ontarians to participate in these consultations as privacy is critically important to everyone,” Thompson said. — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Proposed Quebec privacy law overhaul ‘concerning’: Bell lawyer

Broadcast | October 20, 2020

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Proposed Quebec privacy law overhaul ‘concerning’: Bell lawyer

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