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Submit for CPEs. Privacy Digest A roundup of US privacy news. PIPEDA recognizes that consent may be implied in certain cases and that consent can be deemed in some specific circumstances. PIPEDA also provides that there are exceptions from the requirement for consent in certain circumstances. On or before collecting personal information about an individual, an organization must disclose to the individual verbally or in writing: i the purposes for the collection of the information; and ii the position name or title and the contact information of a person who is able to answer the individual's questions about the collection.
The PIPAs recognize that consent may be implied in certain cases and that consent can be deemed in some specific circumstances. The PIPAs also provide that there are exceptions from the requirement for consent in certain circumstances. Personal data must be processed in a manner that "ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures".
Such measures must be designed to implement data-protection principles in an effective manner and to integrate the necessary safeguards. Appropriate to the sensitivity of the information, an organization must adopt security safeguards to protection the personal information in its custody and control against loss or theft, as well as unauthorized access, disclosure, copying, use, or modification. Methods of protections must include physical, organizational and technological measures.
An organization must protect personal information that is in its custody or under its control by making reasonable security arrangements against such risks as unauthorized access, collection, use, disclosure, copying, modification, disposal or destruction. Appropriate technical and organizational measures must be implemented to ensure and to be able to demonstrate that processing is performed in accordance with the GDPR.
This may include the implementation of appropriate data protection policies, and adherence to applicable "codes of conduct" and "certification mechanisms". In certain circumstances, a controller or processor must designate a "representative" in the EU i. In certain instances, a "data protection officer" must also be appointed.
An organization is responsible for any personal information under its control and must designate one or more individuals who are accountable for the organization's privacy compliance. An organization is responsible for any personal information under its custody and control, and must designate one or more individuals who are responsible for the organization's privacy compliance.
Organizations must implement applicable policies and practices to give effect to the PIPAs. An organization must make written information about its privacy policies and practices available on request. The GDPR includes the following rights for individuals:. The PIPAs include the following rights for individuals:. Generally, an organization may transfer personal data to a third party service provider outside of the EU in limited circumstances, including:.
Generally, an organization may transfer personal information to a third party service provider in a jurisdiction outside of Canada if the organization: i is satisfied that the service provider has policies and processes in place to ensure that the information in its care is properly safeguarded at all times including training for its staff and effective security measures ; ii uses contractual or other means to "provide a comparable level of protection while the information is being processed by the third party"; iii has the right to audit and inspect how the third party handles and stores personal information; and iv at the time that the personal information is collected from an individual, makes it plain that their information may be processed in a foreign country and that it may be accessible to law enforcement and national security authorities of that jurisdiction.
Generally, Alberta's PIPA provides that an organization may transfer personal information to a third party service provider in a jurisdiction outside of Canada if the organization's policies and practices include information regarding: i the countries outside Canada in which such activities may occur; and ii the purpose for which the service provider has been authorized to collect, use or disclose personal information. An organization must make written information available about these policies and practices.
Notice must also be given, before or at the time of collecting or transferring the personal information, of: i the way in which the individual may obtain access to written information about the organization's policies and practices with respect to service providers outside Canada; and ii the name or title of a person who is able to answer questions about the collection, use, disclosure or storage of personal information by service providers outside Canada.
BC's PIPA does not explicitly address the transfer personal information to a third party service provider in a jurisdiction outside of Canada. Nevertheless, this statute appears to contemplate same by the fact that an organization is "responsible for personal information under its control, including personal information that is not in the custody of the organization". Commencing on November 1, , an organization must:.
Since , Alberta's PIPA states that an organization must provide notice to the Alberta Privacy Commissioner of any incident involving the loss of or unauthorized access to or disclosure of the personal information if there is a real risk of significant harm to an individual as a result of the loss or unauthorized access or disclosure. The Privacy Commissioner may require the organization to notify affected individuals. Under PIPEDA, the federal Privacy Commissioner can make non-binding recommendations to organizations, but cannot issue binding orders or impose administrative monetary penalties.
The Alberta and BC Privacy Commissioners have the authority to make variousorders, including, for example:. Depending on the circumstances, administrative fines of up to:. Under Alberta's PIPA, such a fine can arise if, for example, an organization: i collects, uses or discloses personal information in contravention of Alberta's PIPA; ii attempts to gain or gains access to personal information in contravention of Alberta's PIPA; iii makes an adverse employment action against an employee who acted as a "whistle blower"; or iv fails to comply with an order made by the Alberta Privacy Commissioner.
Under BC's PIPA, such a fine can arise if, for example, an organization: i uses deception or coercion to collect personal information; ii disposes of personal information with an intent to evade a request for access; iii dismisses, suspends, demotes, disciplines, harasses or otherwise disadvantages an employee who is a whistleblower; or iv fails to comply with an order made by the BC Privacy Commissioner.
Each data subject will have the right to: i an "effective judicial remedy" where he or she considers that his or her rights under this GDPR have been infringed; and ii receive compensation for any material or non-material damage arising from any such infringement.
In certain circumstances, the Federal Court may order an organization to correct its privacy practices and award damages to a complainant.
An individual has a cause of action against an organization for damages if: i the Alberta or BC Privacy Commissionerhas made an order against the organization; or ii a person has been convicted of an offence under PIPA, and the organization has no further right of appeal in either instance. If you would like to learn more about the potential impact of the GDPR on your business, members of our privacy team can assist, and where required can direct you to experienced European counsel.
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Learn More Accept. Gittens , Stephen D. Your LinkedIn Connections with the authors. To print this article, all you need is to be registered or login on Mondaq. Who does it apply to? The GDPR has extraterritorial effect; it applies to any natural or legal person, public authority, agency or other body outside of the EU who: targets individuals in the EU by offering goods or services regardless of whether a payment is required ; or monitors the behavior of individuals in the EU where that behavior takes place in the EU.
PIPEDA applies to: the collection, use and disclosure of personal information by an organization in the course of its commercial activity in a province without substantially similar privacy legislation; the transfer of personal information across borders; federal works, undertakings or businesses FWUBs ; and the collection, use and disclosure of employee information in connection with FWUBs.
What does it apply to? For example: Alberta's PIPA does not apply to: i the collection, use or disclosure of an individual's business contact information if the collection, use or disclosure, as the case may be, is for the purposes of enabling the individual to be contacted in relation to the individual's business responsibilities and for no other purpose; or ii personal health information; and BC's PIPA does not apply to: i information to enable an individual at a place of business to be contacted; or ii information prepared or collected as a part of the individual's responsibilities or activities related to the individual's employment or business but does not include personal information about an individual who did not prepare or collect the personal information.
Data Protection GDPR PIPEDA PIPAs Personal data must be processed in a manner that "ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures".
Organizations must implement applicable policies and practices to give effect to PIPEDA, including: "implementing procedures to protect personal information; establishing procedures to receive and respond to complaints and inquiries; training staff and communicating to staff information about the organization's policies and practices; and developing information to explain the organization's policies and procedures".
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