Teresa Scassa - Blog

Monday, 25 July 2022 06:34

Bill C-27 and Children’s Privacy

Written by  Teresa Scassa
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Note: This is the fifth in a series of posts on Canada's Bill C-27 which, among other things, will reform Canada's private sector data protection law.

Bill C-27, the bill to amend Canada’s existing private sector data protection law, gives particular attention to the privacy rights of minors in a few instances. This is different from the current law, and it is a change since the previous (failed) reform bill, Bill C-11. The additions to Bill C-27 respond to concerns raised by privacy advocates and scholars regarding Bill C-11’s silence on children’s privacy.

Directly addressing children’s privacy has been a bit of a struggle for this government, which seems particularly sensitive to federal-provincial division of powers issues. After all, it is the provinces that get to determine the age of majority. A private sector data protection law that defined a child in terms of a particular age range for the purposes of consent, for example, might raise constitutional hackles. Further, many of the privacy issues that concern parents the most are ones that fall at least to some extent within provincial jurisdiction. Consider the issues around children’s privacy and educational technologies used in schools. While many of those technologies are sourced from the private sector, the schools themselves are subject to provincial public sector data protection laws, and so, the schools’ adoption and use of these technologies is governed by provincial legislation. That said, children still spend a great deal of time online; their toys are increasingly connected to the Internet of Things; their devices and accompanying apps capture and transmit all manner of data; and they, their parents and friends post innumerable pictures, videos and anecdotes about them online. Children have a clear interest in private sector data protection.

The government’s modest response to concerns about children’s privacy in Bill C-27 no doubt reflects this constitutional anxiety. The most significant provision is found in s. 2(2), which states that “For the purposes of this Act, the personal information of minors is considered to be sensitive information.” Note that the reference is to ‘minors’ and not ‘children’, and no attempt is made to define the age of majority.

If you search Bill C-27 for further references to minors, you will find few. Two important ones are found in s. 55, which deals with the right of erasure. This right, which allows an individual to request the deletion of their data, has number of significant exceptions to it. However, two of these exceptions do not apply in the case of the data of minors (see my post on the right of erasure). The first of these allows an organization to deny a request for erasure if “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”. The second allows an organization to deny a request for deletion if the data is subject to a data retention policy. Neither exception to the right of erasure applies in the case of the data of minors. This is important as it will allow minors (or those acting on their behalf) to obtain deletion of data – even outside the organization’s regular disposal schedule.

The Personal Information Protection and Electronic Documents Act currently links valid consent to a person’s capacity to understand “the nature, purpose and consequences of the collection, use or disclosure of the personal information to which they are consenting” (s. 6.1). Bill C-11 would have eliminated this requirement for valid consent. Responding to criticisms, the government in Bill C-27, has added a requirement that consent must be sought “in plain language that an individual to whom the organization’s activities are directed would reasonably be expected to understand.” (s. 15(4)) It is good to see this element returned to the reform bill, even if it is a little half-hearted compared to PIPEDA’s s. 6.1. In this regard, Bill C-27 is an improvement over C-11. (See my post on consent in Bill C-27).

Although no other provisions are specifically drafted for minors, per se, declaring that the personal information of minors is considered ‘sensitive’ is significant in a Bill that requires organizations to give particular attention to the sensitivity of personal data in a range of circumstances. For example, an organization’s overall privacy management program must take into account both the volume and sensitivity of the information that the organization collects (s. 9(2)). The core normative principle in the legislation, which limits the collection, use and disclosure of personal information to that which a reasonable person would consider appropriate in the circumstances also requires a consideration of the sensitivity of personal data (s. 12(2)(a)). In determining whether an organization can rely upon implied consent, the sensitivity of the information is a relevant factor (s. 15(5)). Organizations, in setting data retention limits, must take into account, among other things, the sensitivity of personal data (s. 53(2)), and they must provide transparency with respect to those retention periods (s. 62(2)(e)). The security safeguards developed for personal data must take into account its sensitivity (s. 57(1)). When there is a data breach, the obligation to report the breach to the Commissioner depends upon a real risk of significant harm – one of the factors in assessing such a risk is the sensitivity of the personal data (s. 58(8)). When data are de-identified, the measures used for de-identification must take into account the sensitivity of the data, and the Commissioner, in exercising his powers, duties or functions must also consider the sensitivity of the personal data dealt with by an organization (s. 109).

The characterization of the data of minors as ‘sensitive’ means that the personal data of children – no matter what it is – will be treated as sensitive data in the interpretation and application of the law. In practical terms, this is not new. The Office of the Privacy Commissioner has consistently treated the personal data of children as sensitive. However, it does not hurt to make this approach explicit in the law. In addition, the right of erasure for minors is an improvement over both PIPEDA and Bill C-11. Overall, then, Bill C-27 offers some enhancement to the data protection rights of minors.

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