CPPA - How companies will need to manage their information

On November 17th Navdeep Bains, the Minister of Innovation, Science and Industry, introduced Bill C-11, the Digital Charter Implementation Act, 2020. Bill C-11 seeks to modernize Canadian privacy legislation through the introduction of the new Consumer Privacy Protection Act (“CPPA”) and the creation of a new enforcement tribunal through the Personal Information and Data Protection Tribunal Act (“PIDPT”). This represents a significant overhaul of the existing Personal Information Protection and Electronic Documents Act (“PIPEDA”) that governs privacy in the private sector.

The proposed legislation introduces new record keeping and data management concerns for companies. In particular,

• All organizations (large or small) are required by s. 9 to implement a “privacy management program” targeting policies, practices and procedures directed at fulfilling their obligations under the CPPA. These policies, practices and procedures must be accessible to the Commissioner (s. 10) and must address (a) protection of personal information; (b) access requests and complaint procedures; (c) training and internal information relating to the policies, practices and procedures; (d) development of external-facing materials. Subsection 9(2) of the CPPA implies that standards will be more rigorous for organizations that collect, use or disclose higher volumes of personal information or more sensitive forms of personal information.
• New record keeping obligations are imposed by ss. 12 (3) and (4), which require companies to document the purposes for which personal information is collected, used, or disclosed, and to continually update this if new purposes arise.
• Sections 13 and 14 restrict organizations to collecting only that personal information that is “necessary for the purposes determined and recorded under subsection 12(3)” unless that collection is the subject of an exception principle under the CPPA.
• Section 60 continues the PIPEDA requirement to “keep and maintain a record of every breach of security safeguards involving personal information under its control”, even if the breach did not meet a reporting threshold.
• Section 71(3) requires the keeping of a recording of disagreement with regard to amendment of personal information.
• Section 122(1)(k) permits regulations to be created respecting record-keeping and reporting obligations of an entity that operates an approved certification program, including obligations to provide reports to the Commissioner in respect of an approved certification program.

Beyond these sections, Data data management will also be impacted by the rights to data portability (the right to transfer personal information from one organization to another) and data disposal (the right to request permanent deletion of personal information), as well as the new data de-identification obligations, particularly as applied to the sharing of information in prospective business transactions.

When the Bill is passed, it will be crucial for companies to review their privacy practices and data governance plans. These changes come with teeth – the maximum penalty for violations is the higher of $25,000,000 or 5% of the organization’s gross global revenue. This is notably higher than the 4% maximum penalty imposed by the EU General Data Protection Regulation (“GDPR”), and on par with the recent draft Personal Data Protection Law in China.

Being able to identify and locate personal information, and automating this process, will be the key to ensuring compliance with these new laws. Contact MT>3 (Susan Wortzman or Gordon Lee) to discuss how to plan and update your data governance strategies and learn more about the technological tools that exist to help this process.
 
For more analysis on the new Bill and its changes, please see the McCarthy Tétrault TechLex blog post: Hello CPPA & PIDPT: The Federal Government Proposes Dramatic Evolution of PIPEDA. 

Susan Wortzman, Daniel Glover, G​ordon Lee