Monday, 18 July 2022 06:39

Bill C-27 and the erasable right of erasure

Written by  Teresa Scassa
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Bill C-27, which will amend Canada’s private sector data protection law, contains a right of erasure. In its basic form, this right allows individuals to ask an organization to dispose of the personal information it holds about them. It is sometimes referred to as the right to be forgotten, although the right to be forgotten has different dimensions that are not addressed in Bill C-27. Bill C-27’s predecessor, Bill C-11, had proposed a right of erasure in fairly guarded terms: individuals would be able to request the disposal only of information that the organization had obtained from the individual. This right would not have extended to information the organization had collected through other means – by acquiring that information from other organizations, scraping it from the internet, or even creating it through profiling algorithms. Section 55 of Bill C-27 (“disposal at individual’s request”) brings some interesting changes to this limitation. Significantly, it extends the right of erasure to the individual’s personal information that “is under the organization’s control”. Nevertheless, in doing so, it also adds some notable restrictions.

First, Bill C-27’s right of erasure will only apply in three circumstances. The first, set out in s. 55(1)(a), is where the information was collected, used or disclosed in contravention of the Act. Basically, if an organization had no right to have or use the personal data in the first place, it must dispose of the information at the request of the individual.

The second situation, set out in s. 55(1)(b), is where an individual has withdrawn their consent to the collection, use or disclosure of the information held by the organization. Perhaps a person agreed to allow an organization to collect certain data in addition to the data considered necessary to providing a particular product or service. If that person decides they no longer want the organization to collect this additional data, not only can they withdraw consent to its continued collection, they can exercise their right to erasure and have the already-collected data deleted.

Finally, s. 55(1)(c) allows an individual to request deletion of personal data where the information is no longer necessary for the continued provision of a product or service requested by the individual. If an individual ceases to do business with an organization, for example, and does not wish the organization to retain their personal information, they can request its deletion. Here, the expansion of the right to include all personal information under the organization’s control can be important. For example, if you terminate your contract with a streaming service, you could request deletion not just of the customer data you provided to them, and your viewing history, but also the organization’s inexplicable profile of you as someone who loves zombie movies.

Where an organization has acceded to a request for disposal of personal data, it is also obliged, under s. 55(4), to inform “any service provider” to which it has transferred the data to dispose of them. The organization is responsible for ensuring this takes place. Note, however, that the obligation is only to inform any service provider, defined in the bill as an entity that “provides services for or on behalf” of the organization to assist it in fulfilling its purposes. The obligation to notify does not extend to those to whom the data may have been sold.

There are, however, important exceptions to this expanded right of erasure. Subsection 55(2) would allow an organization to refuse to dispose of data under s. 55(1)(b) or (c) in circumstances where it is inseparable from the personal data of another person (for example, that embarrassing photo of you partying with others that someone else posted online); other legal requirements require the organization to retain the information; or the organization requires the data for a legal defence or legal remedy.

A few other exceptions are potentially more problematic. Paragraph 55(2)(d) creates an exception to the right of erasure where:

(d) the information is not in relation to a minor and the disposal of the information would have an undue adverse impact on the accuracy or integrity of information that is necessary to the ongoing provision of a product or service to the individual in question;

For example, this might apply in the case where an individual remains in a commercial relationship with an organization, but has withdrawn consent to a particular use or disclosure of their data and has requested its deletion. If the organization believes that deleting the information would adversely affect the integrity of the product or service they continue to provide to the individual, they can refuse deletion. It will be interesting to see how this plays out. There may be a matter of opinion about the impacts on the integrity of the product or service being supplied. If an individual finds an organization’s recommendation service based on past purchases or views to be largely useless, seeking deletion of data about their viewing history will not impact the integrity of the service from the individual’s point of view – but the organization might have a different opinion.

In Bill C-27, the government responded to criticisms that its predecessor, Bill C-11, did nothing to specifically deal with children’s privacy. Bill C-27 addresses the privacy of minors in specific instances, and the right of erasure is one of them. Interestingly, the right of erasure prevails under s. 55(2)(d) for minors, presumably even when the erasure would have an “undue adverse impact on the accuracy or integrity of information that is necessary to the ongoing provision of a product or service”. It seems that minors will get to choose between deletion and adverse impacts, while those over the age of majority will have to put up with retention and uses of their personal data to which they object.

Another exception to the right also applies only to those past the age of majority. Paragraph 55(2)(f) provides that an organization may refuse a request for disposal of personal information if:

(f) the information is not in relation to a minor and it is scheduled to be disposed of in accordance with the organization’s information retention policy, and the organization informs the individual of the remaining period of time for which the information will be retained.

What this means is that if an organization has a retention policy that conforms to s. 53 of Bill C-27 (one that provides for the destruction of personal information once it is no longer necessary for the purposes for which it was collected, used or disclosed), then it can refuse a request for erasure – unless, of course, it is a minor who requests erasure. In that case, they must act in advance of the normal disposal schedule. This provision was no doubt added to save organizations from the burden of having to constantly respond to requests for erasure of personal data. For large swathes of personal data, for example, they can prepare a standard response that informs a requestor of their retention policy and provides the timetable on which the data will be deleted once it is no longer necessary to fulfill the purposes for which it was collected. If this provision can also be relied upon when an individual ceases to do business with an organization and requests the deletion of their information, then the right of erasure in Bill C-27 will become effectively useless in the case of any company with a data retention policy. Except, of course, for minors.

Finally, organizations will be given the right to refuse to consider requests for deletion that are “vexatious or made in bad faith”. Let’s hit pause here. This exception is to protect commercial entities against data subjects. I understand that organizations do not want to be subject to mass campaigns for data deletion– or serial requests by individuals – that overwhelm them. That might happen. However, the standard form email that will be part of the ‘regular deletion schedule’ exception discussed above will largely suffice to address this problem. Organizations now have enormous abilities to collect massive amounts of personal data and to use these data for a wide variety of purposes. Many do this responsibly, but there are endless examples of overcollection, over-retention, excessive sharing, poor security, and outright abuses of personal data. The right of erasure is a new right for individuals to help them exercise greater control over their personal data in a context in which such data are often flagrantly misused. To limit this right based on what an organization considers vexatious is a demonstration of how the balance in Bill C-27 leans towards the free flow and use of personal data rather than the protection of privacy.

It is important to note that there is yet another limit on the right of erasure, which is found in Bill C-27’s definition of ‘dispose’. According to this definition, dispose means “to permanently and irreversibly delete personal information or to anonymize it. Thus, an organization can choose to anonymize personal data, and once it has done so, the right of erasure is not available. (See my post on anonymized and deidentified data for what ‘anonymized’ means). Section 2(3) of Bill C-27 also removes the right of erasure where information is merely de-identified (pseudonymized). This seems like an internal contradiction in the legislation. Disposal means deletion or rigorous anonymization – but, under s. 2(3), a company can just pseudonymize to avoid a request for disposal. The difference seems to be that pseudonymized data may still eventually need to be disposed of under data retention limits, whereas anonymized data can be kept forever.

All told, as a right that is meant to give more control to individuals, the right of erasure in Bill C-27 is a bit of a bust. Although it allows an individual to ask an organization to delete data (and not just data that the individual provided), the right is countered by a great many bases on which the organization can avoid it. It’s a bit of a ‘Canadian compromise’ (one of the ones in which Canadians get compromised): individuals get a new right; organizations get to side-step it.



Teresa Scassa

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