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Government of Canada: Proposed New Regulations in respect of Mandatory Reporting of Data Breaches under PIPEDA [Completed]

Date issued:

March 26, 2018

Ef­fec­tive date:

The data breach reporting regime under PIPEDA will come into force on November 1, 2018.

Last up­dated:

March 2018

Overview

On March 26, 2018, the Government of Canada announced that, on November 1, 2018, important changes to the Personal Information Protection and Electronic Documents Act (PIPEDA) will come into force. Among other things, the changes will require domestic and foreign organizations subject to PIPEDA to: (a) notify individuals about privacy breaches; (b) report privacy breaches to the Office of the Privacy Commissioner of Canada and others in certain circumstances; and (c) keep certain records of privacy breaches.

The provisions that will be coming into force are a combination of statutory provisions in PIPEDA and a set of regulations which address matters such as the content of notices and breach record keeping. The new rules will have important compliance, legal risk and related impacts for organizations that process information about Canadians, as follows:

Breach reporting requirements

PIPEDA requires an organization that experiences a “breach of security safeguards” involving personal information under the organization’s control, where it is reasonable in the circumstances to believe that the breach poses a “real risk of significant harm” to affected individuals, to:

  1. Report the breach to the Privacy Commissioner of Canada (Commissioner)
  2. Notify affected individuals
  3. Notify government institutions, parts of government institutions or other organizations if the organization believes that the institution (or part thereof) or other organization may be able to reduce or mitigate the risk of harm to the affected individuals.

PIPEDA also requires organizations to keep and maintain a record of all breaches of security safeguards under the organization’s control, even those that do not meet the harm threshold for reporting.

An organization that knowingly fails to report or maintain records of a breach as required by PIPEDA will be guilty of an offence punishable by fines of up to C$100,000.

PIPEDA defines a “breach of security safeguards” as the loss of, or unauthorized access to – or disclosure of – personal information resulting from a breach of an organization’s personal information security safeguards or from a failure to establish those safeguards.

Report to the Commissioner

PIPEDA specifies that the report to the Commissioner must be made as soon as feasible after the organization determines that the breach has occurred. The Regulations set out the form and manner in which the report must be made, as well as the information that must be included in the report.

In particular, the Regulations require that the report be made in writing, that it be submitted to the Commissioner via any secure means of communication, and that it contain the following information:

  • A description of the circumstances of the breach and, if known, the cause
  • The day on which, or the period during which, the breach occurred or, if neither is known, the approximate period
  • A description of the personal information that is the subject of the breach to the extent that the information is known
  • The number of individuals affected by the breach or, if unknown, the approximate number
  • A description of the steps that the organization has taken to reduce the risk of harm to affected individuals that could result from the breach or to mitigate that harm
  • A description of the steps that the organization has taken or intends to take to notify affected individuals of the breach in accordance with the Act
  • The name and contact information of a person who can answer, on behalf of the organization, the Commissioner’s questions about the breach.

The Regulations contemplate that an organization may not have complete information at the time a report is made, and specifically allow an organization to submit new information to the Commissioner after the initial report has been submitted. This is an important improvement over the draft regulations, since organizations often do not have complete information at the time the report is required to be submitted. The final Regulations also refer to harm “that could result from the breach” rather than harm “resulting from the breach” (the language in the draft regulations). The final wording is more practical than the prior language, as potential harms will often be speculative at the time the breach is first discovered and may never materialize.

Notice to Affected Individuals

PIPEDA requires that notice be conspicuous and that it be provided to affected individuals directly (except in prescribed circumstances) and as soon as feasible after the organization determines that the breach has occurred. The Act also requires that the notice contain sufficient information to allow the individual to understand the significance to them of the breach and to take steps, where possible, to reduce the risk of harm or mitigate the harm. The Regulations set out the form and manner in which direct notice must be provided, the circumstances and manner in which indirect notice may be provided, and the information that must be included in the notice.

In particular, the Regulations require that the following information be included in the notice:

  • A description of the circumstances of the breach
  • The day on which, or the period during which, the breach occurred or, if neither is known, the approximate period
  • A description of the personal information that is the subject of the breach to the extent that the information is known
  • A description of the steps that the organization has taken to reduce the risk of harm to affected individuals that could result from the breach or to mitigate that harm
  • A description of the steps that affected individuals could take to reduce the risk of harm that could result from the breach or to mitigate that harm
  • Contact information that the affected individual can use to obtain further information about the breach.

Direct notice may be given in person, by telephone, mail, email or any other form of communication that a reasonable person would consider appropriate in the circumstances. This degree of flexibility is important as it will allow for non-traditional communication when an organization does not have traditional contact information for affected individuals.

Indirect notice is required if direct notice would be likely to cause further harm to the affected individual, undue hardship for the organization, or the organization does not have contact information for the affected individual. Indirect notice must be given by public communication or similar measure that could reasonably be expected to reach the affected individuals.

Record Keeping

PIPEDA requires that organizations keep and maintain records of all breaches of security safeguards, including those that do not meet the harm threshold for reporting and notification. These records must be provided to the Commissioner upon request. The Regulations clarify that the records must be maintained for 24 months from the day that the organization determined that the breach occurred, and that they contain sufficient information to enable the Commissioner to verify compliance with the breach reporting provisions of the Act.

Further details

For fur­ther de­tails, re­fer to summaries from:

 

Re­cent developments

March 2018

On March 26, 2018, the Government of Canada announced that, on November 1, 2018, important changes to the Personal Information Protection and Electronic Documents Act (PIPEDA) will come into force.

September 2017

On September 2, 2017, the Government of Canada published the proposed new regulations (“Regulations”) in the Canada Gazette.

June 2015

On June 18, 2015, the Digital Privacy Act (also known as Bill S-4) amended PIPEDA in a number of areas. One of the key changes was the establishment of mandatory data breach reporting requirements. The Data Breach Reporting Requirements were passed in June 2015, but are not yet in force.

 

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