Disclaimer: The information on this page is meant to be solution-focused and helpful for Canadian retailers navigating privacy and data reforms in Canada. If you have any questions or suggestions, please contact Kate Skipton at kskipton@retailcouncil.org. This page is not legal advice; it is merely information which we make some effort to keep updated and accurate. We suggest you seek professional advice specific to your circumstances for any material decisions.
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Privacy and data for Canadian retailers
Almost daily, we see and hear headlines about data privacy concerns, data breaches and overall misuse of data (e.g.: Cambridge Analytica, Desjardins). Increasingly, the retail landscape requires retailers to make use of data to create great customer experiences, while also protecting individuals’ personal information.
Privacy laws and regulations generally apply when a retailer handles information that can identify an individual person. Retailers collect personal information in many situations. An email address, clothing size, physical location, name, credit card number, IP address, web cookies and video camera footage – these are only some examples of personal data that retailers handle. This data often flows across physical and digital landscapes and often across many national and international legal jurisdictions.
Who regulates privacy in Canada?
Disclaimer: The information on this page is meant to be solution-focused and helpful for Canadian retailers navigating privacy and data reforms in Canada. If you have any questions or suggestions, please contact Kate Skipton at kskipton@retailcouncil.org. This page is not legal advice; it is merely information which we make efforts to keep updated and accurate. We suggest you seek professional advice specific to your circumstances for any material decisions.
Federal: The federal Office of the Privacy Commissioner of Canada (OPC) is the main regulator for retailers handling consumer personal information in Canada. The OPC administers Canada’s federal private sector privacy legislation, the Personal Information Protection and Electronic Documents Act (PIPEDA).
PIPEDA is Canada’s main privacy law governing consumer information held by retailers. B.C., Quebec and Alberta also have their own private sector privacy legislation. This means that in many circumstances, the provincial law applies instead of the federal law. The OPC explains more about how this works. View information.
It is best to assess which law(s) apply on a case-by-case basis depending on the situation you are dealing with.
| PIPEDA applies if information crosses provincial/national borders during commercial activities. | PIPEDA applies without the complement of a regional, substantially equivalent private sector privacy law. | |
| Alberta | Yes | No |
| British Columbia | No | |
| Manitoba | Yes | |
| New Brunswick | Yes | |
| Newfoundland | Yes | |
| Nova Scotia | Yes | |
| Ontario | Yes | |
| Prince Edward Island | Yes | |
| Quebec | No | |
| Saskatchewan | Yes | |
| Nunavut | Yes | |
| Northwest Territories | Yes | |
| Yukon | Yes |
The federal Competition Bureau has also entered the data privacy arena. In 2020, the Competition Bureau issued Facebook a $9M penalty for deceptive marketing based on misleading privacy claims. Spring 2022 amendments to the Competition Act included consumer privacy in an expanded list of criteria to be considered when assessing the competitive impact of mergers, business practices and competitor collaborations (view 2022 amendments guide). The Competition Bureau also shares jurisdiction for Canada’s Anti-Spam Law (CASL) with the Canadian Radio-Television and Telecommunications Commissioner (CRTC) and federal Privacy Commissioner (OPC). CASL generally focuses on commercial electronic communications including text messaging, email marketing and social media.
Regional: Every Canadian province and territory has a regulator, in the form of a Commissioner or Ombudsperson, who deals with that region’s legislation governing personal information.
Regulators in Quebec, BC and Alberta address private sector privacy in those provinces. At times, they may conduct joint investigations with the federal Privacy Commissioner (view example). Four provinces have health privacy laws deemed substantially equivalent to PIPEDA and regulators that address them: Ontario, New Brunswick, Nova Scotia and Newfoundland and Labrador. View regional regulator list. View health privacy list.
Generally, privacy regulator involvement is triggered by a complaint from an individual, such as from a customer who shares personal information with a retailer and then feels that the retailer has not taken very good care of it. View more information.
What’s happening in Canadian data privacy reform?
Privacy and data regulatory frameworks are currently undergoing significant reviews and reforms in Canada and internationally. The need for Canada to maintain “adequacy status” under Europe’s rigorous General Data Protection Regulation (GDPR) is part of what is driving Canadian privacy reforms. Businesses, including retailers, whose operations involve personal data flowing across regional and international borders will be looking at a more complex mosaic of stricter data privacy laws emerging over the next few years in Canada.
What potential new privacy rules should retailers expect?
Retailers are familiar with long-held privacy practices like having a privacy policy, asking for customer consent and keeping customer and employee information safe.
The ongoing Canadian data privacy reforms involve a range of stricter new requirements intended to protect individuals’ personal information in the modern, data-driven world. Some new and enhanced rules commonly proposed across different Canadian jurisdictions include:
- Empowering individuals to have more control over their data. e.g.:
- Rigorous consent and transparency requirements,
- Right to have a company delete their data,
- De-indexing/the right to be forgotten (letting a person remove their information from search engine queries or databases),
- Data portability/data mobility (letting a person take all their data out of a company in portable format)
- Empowering individuals and regulators to hold companies more accountable, e.g.: mandatory breach notification, expanded audit powers, more administrative monetary penalties and fines, private rights of action for individuals.
- Anonymizing (also called “de-identifying”) datasets to help protect the identities of those whose information is contained in the data, as well as addressing the risks of re-identification.
- Requiring consideration, to varying degrees, of legal privacy protections in countries where companies send data for storage or analysis.
- Specific process requirements, like appointing a privacy officer and mandating privacy impact assessments (PIAs).
- Regulating autonomous decision making by technologies, e.g. artificial intelligence.
- New language in privacy policies, in plain and simple terms, to reflect all these proposed requirements.
Retailers may wish to look more closely at the regional and international markets in which they operate. They may wish to assess how their current approach to personal data protection fits with any potential new data privacy requirements.
Federal
The federal government has tabled a second set of major proposals to overhaul Canada’s main privacy law affecting retailers (PIPEDA): Bill C-27, the Digital Charter Implementation Act, 2022. Their initial set of reform proposals, Bill C-11 tabled in 2020, timed out when the 2021 federal election was called.
Bill C-27 2022 was introduced a few days before Parliament finished sitting for the spring 2022 session. Among many other significant changes to Canada’s privacy regime, Bill C-27 2022 would establish a new federal law governing artificial intelligence, the Artificial Intelligence and Data Act (AIDA). It would also replace the main Canadian privacy law governing retailers, the Personal Information and Electronic Documents Act (PIPEDA), with proposed new legislation called the Consumer Privacy Protection Act (CPPA). Bill C-27 includes significant fines for non-compliant organizations of up to 5% of global revenue or $25 million, whichever is greater, for the most serious offences
Bill C-27 still has several Parliamentary stages to go before it is passed.
For more information:
Government publications: View Bill C-27 2022 summary. View Bill C-27 2022
Legal information: View Osler overview. View BLG resources.
Regional reforms
Quebec
In September 2021, Quebec passed a series of stringent new privacy amendments affecting retailers into law: Bill 64, An Act to modernize legislative provisions as regards the protection of personal information.
Strongly inspired by Europe’s General Data Protection Regulation (GDPR), these amendments contain many significant changes to Quebec private sector privacy law. These include new requirements for data transfers to service providers outside Quebec, new consumer rights like data portability and financial penalties of up to $25M or 4% of worldwide turnover for serious offences. The new law comes into force in staggered time periods of one to three years after September 2021, meaning that it will be in force in full by the end of 2024.
Read more: Law firm BLG on Bill 64 requirements for business.
Ontario
Ontario released a new Digital and Data Strategy in spring 2021. This included proposals for “Canada’s first provincial data authority” and a new artificial intelligence framework.
In summer and fall of 2021, the province also released and consulted on a White Paper proposing a new, made-in-Ontario privacy law. The White Paper included stringent data privacy proposals for new provincial private sector privacy legislation inspired by federal, Quebec and international privacy reforms.
Read More: White Paper: Modernizing Privacy Law in Ontario
British Columbia
After a hiatus due to an election, British Columbia resumed consultations on its review of its Personal Information Protection Act (PIPA) in spring and early summer 2021.
The Special Committee reviewing PIPA released their report, with 34 recommendations, in December 2021.
The recommendations address the following areas: alignment with other privacy legislation, new and emerging technologies (e.g. biometrics, automated processes and anonymization), meaningful consent, mandatory breach notification, disclosure of personal information, employer accountability, health information and augmented powers for the Office of the Information and Privacy Commissioner.
For more information: View full report.
Alberta
Alberta held consultations during summer 2021 to inform the province’s review of its Personal Information Protection Act (PIPA).
For questions about these reforms, retailers can email kskipton@retailcouncil.org.
Disclaimer: The information on this page is meant to be solution-focused and helpful for Canadian retailers navigating privacy and data reforms in Canada. If you have any questions or suggestions, please contact Kate Skipton at kskipton@retailcouncil.org. This page is not legal advice; it is merely information which we make some effort to keep updated and accurate. We suggest you seek professional advice specific to your circumstances for any material decisions.
Privacy and data resources for retailers
Anonymous Video Analytics (AVA) in stores and malls
Anonymous Video Analytics (AVA) describes a type of technology that collects video images using camera sensors to detect the presence of a human face, using facial pattern comparison algorithms to derive limited demographic data. AVA is sometimes used in public settings such as malls and retail stores for purposes that include advertising (e.g. digital signage), statistical analysis and resource management.
Camera-related technologies can raise privacy concerns and have come under scrutiny by Canadian privacy regulators. Some privacy experts believe a path forward exists for the commercial use of AVA and have outlined some recommendations. View AVA information.
RCC Guidebook: Canadian Anti-Spam Law (CASL): Guidelines for Responsible Transmission of Electronic Messages (RCC members only)
CASL has been in force for several years and applies to email marketing and communications. This 2017 members-only Guidebook helps explain CASL for retailers (CASL may also see some changes as part of any forthcoming federal privacy reforms).
RCC Guidebook: How does the GDPR affect Canadian retailers? (RCC members only)
Europe’s General Data Protection Regulation (GDPR) is a privacy regulation that was launched in 2018. If your business has customers or even website visitors from Europe, then you may fall under the GDPR’s scope. The GDPR’s large fines (up to 20M Euro or 4% of a firm’s worldwide annual turnover, whichever is highest), global reach and influence on Canadian federal and provincial privacy reform make it relevant to Canadian retailers. RCC’s GDPR guidebook covers GDPR for Canadian retailers.
Guiding Principles on Privacy for Retailers in Canada (RCC members only)
Protecting your business and your customers’ personal information against the threats of cyber-breaches and criminal activities is paramount in today’s retail environment. The purpose of this paper is to clarify the guiding principles of the Personal Information and Protection of Electronic Documents Act (PIPEDA) (pre-reform) and the practical applications associated with those principles pertaining to loss prevention and fraud specifically (2017).
Privacy Committee (RCC members only)
The Privacy Committee is comprised of retail professionals interested in and responsible for the areas of data governance and privacy. The purpose of the committee is to share best practices and information related to data governance and privacy and to help members stay ahead of the curve on issues that impact the industry.
Federal requirements on data breach record-keeping and reporting
As of November 1, 2018, retailers must notify the federal Office of the Privacy Commissioner (OPC) if they experience a data breach that creates a “real risk of significant harm” (RROSH) to the individuals whose personal information is affected. Retailers must also record how they assess whether or not a data breach is serious enough to meet the RROSH standard and require notification.
How American retailers use consumer data
Nearly two thirds of U.S. consumers say retailers, not the government or tech vendors, are responsible for data privacy, according to a 2019 Deloitte report. Most U.S. consumers think that retailers use their personal data for target marketing. In fact, the top three consumer data uses by U.S. retailers are to:
- Increase operational efficiencies
- Improve product selection
- Enhance in-store services or experiences.
Consumer journey steps in a data-driven, American retail store may now include mobile phone location data gathering, with AI assistants generating product recommendations and push notifications to personal devices while customers walk around brick-and-mortar stores.
De-identifying personal data in big datasets
Many companies including retailers analyze large volumes of data routinely (“big data”). De-identifying personal information in large datasets is often mentioned as a way to protect privacy. Also called anonymization, effective de-identification means rendering it impossible to identify an individual from the information a dataset contains about them.
However, in practice, rapidly evolving data analytics technologies make it challenging to have confidence that de-identifying any dataset can be permanently effective.
Canadian non-profit CANON is an international resource that covers the challenges posed by anonymization and lists domestic and international anonymization guidance.
How do AI and machine learning challenge traditional Canadian privacy frameworks?
Effective data governance reform is challenging in part because some of the technologies underlying the “data-driven” world handle personal information in paradigm-shifting new ways. In the case of AI and machine learning, this paradigm shift presents itself essentially for two reasons: (1) these programs can analyze much larger and more complex datasets, including unstructured data (e.g. audio, image, video and text; unstructured data comprises 80% of enterprise data), and (2) machine learning programs can teach themselves new insights and make decisions based on what they learn.
The ways these technologies can process an individual’s personal data challenge long-held privacy principles like transparency and purpose-based consent. They raise new possibilities and challenges for how data privacy frameworks can still implement those principles in ethical and economically viable ways.
As a result, legal and regulatory reform pertaining specifically to these technologies has been and continues to be under discussion in Canada and internationally. AI’s predictive capacities make it useful to retailers in many ways, e.g. to better manage inventory and supply chains.
View more info on AI and privacy
View ISED PIPEDA White Paper containing discussion of AI and machine learning reform
Contact Kate Skipton, Senior Policy Analyst, at kskipton@retailcouncil.org for more information.
Disclaimer: The information on this page is meant to be solution-focused and helpful for Canadian retailers navigating privacy and data reforms in Canada. This page is not legal advice; it is merely information which we make some effort to keep updated and accurate. We suggest you seek professional advice specific to your circumstances for any material decisions.