Canadian Privacy Commissioners have recently published guidance for compliance with privacy laws as applicable to online and mobile environments. The guidance explains how organizations can obtain meaningful, informed consent to the collection, use and disclosure of personal information provided by users of online services and mobile apps. The guidance emphasizes the need for transparency and meaningful consent.

Guidelines for Online Consent

In May 2014, the Office of the Privacy Commissioner of Canada and the Offices of the Information and Privacy Commissioners of Alberta and British Columbia jointly published Guidelines for Online Consent to address consent requirements under private sector privacy laws and to explain the privacy commissioners’ expectations regarding meaningful consent in online and mobile environments. Following is a summary of some important aspects of the Guidelines:

  • Personal Information: Personal information is information that can be used, alone or in combination with other available information, to identify an individual. For example, location information (e.g. GPS data), device identifiers (e.g. IP and MAC addresses), click stream data, browser history and user generated social network data.
  • Meaningful Consent: Privacy laws require organizations to obtain an individual’s meaningful consent to the collection, use and disclosure of the individual’s personal information. Consent is meaningful when an individual understands what the organization will do with the individual’s personal information. The key to meaningful consent is openness and transparency – easily accessible, complete and understandable explanations of the organization’s personal information management practices.
  • Reasonable/Legitimate Purposes: Organizations must inform an individual of the purposes for which the individual’s personal information will be collected, used and disclosed. Consent is only valid in respect of reasonable, disclosed purposes. If an organization’s use or disclosure of personal information would not be reasonably expected by an ordinary user (e.g. sharing information with a third party), then the organization has an even greater responsibility to be transparent and obvious in its explanation.
  • Privacy Policy: Organizations commonly use a privacy policy to obtain meaningful consent to the organization’s collection, use and disclosure of personal information. To be effective, a privacy policy must be accessible and provide a clear, comprehensive and understandable description of the organization’s personal information management policies and practices. A privacy policy should include the following: (a) what information is collected; (b) why information is collected; (c) what the information will be used for; (d) who will access the information; (e) how the information will be safeguarded; (f) how long the information will be retained; (g) whether individuals can opt out of certain information practices; and (h) details regarding the sharing of information with third parties (e.g. what types of third parties, what the third parties will do with the information and whether the third parties are located in a foreign jurisdiction). A privacy policy should be accessible on all kinds of devices (e.g. personal computers, tablets and mobile devices) and presented in a conspicuous manner (e.g. a hyperlink on website landing page) so that users can easily locate the privacy policy.
  • Additional Privacy Disclosures: The manner in which an organization communicates its personal information management practices should depend on the environment, the audience and the level of complexity of the practices. A privacy policy alone might not be sufficient to fulfill legal consent requirements in an online or mobile environment. Organizations are encouraged to use a variety of communication tools, in addition to a privacy policy, to explain their personal information management practices: (a) online banners; (b) just-in-time notifications (e.g. conspicuous, quick to access and intuitive privacy explanations when personal information is requested); (c) layered notices (e.g. a summary of key highlights of relevant information, with additional details available); (d) interactive tools and dynamic disclosures; and (e) standardized icons.
  • Mobile Environment: Organizations should highlight privacy issues at decision points in the mobile user experience, when users are likely to pay attention and when they need guidance. A mobile app should provide users with specific, targeted privacy notifications when users need to make a decision about sharing their personal information. Privacy information must be optimized to be effective on a mobile device screen.
  • Mechanics: Consent in online and mobile environments should be obtained using a mechanism that is appropriate to the nature of the information, the context and the reasonable expectations of users. Organizations should retain proof of consent.
  • Changes: An organization that intends to significantly change its privacy practices (e.g. using personal information for a new purpose or sharing personal information with a new third party) should notify users in advance and consider asking users to confirm their consent before the change comes into effect.
  • Children/Youth: Children’s information is sensitive and merits special consideration. Organizations should implement innovative ways of presenting privacy information to children and youth that take into account their cognitive and emotional development and life experience.
  • WithdrawingConsent:Individuals have the right to withdraw their consent to the use and disclosure of their personal information, subject to legal or contractual restrictions. An individual’s withdrawal of consent should prevent further collection, use and disclosure of the individual’s personal information, and may require an organization to delete data, held by the organization, about the individual.
  • Other Obligations: An individual’s consent does not waive other obligations imposed by privacy laws, including accountability, collection limitations and safeguards.
  • Audit: Organizations should periodically audit their information management practices to ensure that those practices are accurately reflected in the organization’s privacy policy and other disclosures.

Ten Tips

In September 2014, the Office of the Privacy Commissioner of Canada published Ten Tips for Communicating Privacy Practices to Your App’s Users to provide guidance for the effective communication of privacy practices to mobile app users. Following is a summary:

  • Meaningful Disclosure: An app should make meaningful disclosures of personal information practices, including how the app collects, uses and discloses users’ personal information.
  • Be Specific: An app should provide specific notifications to users at key decision points (e.g. during registration or at a point of purchase) regarding the collection, use and disclosure of users’ personal information.
  • Speak to Your Audience: An app should provide privacy information in a manner that is accessible and understandable by users.
  • Tailor to Environment: An app should provide users with privacy information as they need it (e.g. just-in-time notifications at key decision points) and in a manner that addresses the “small screen challenge”.
  • DescribeUseof Permissions: An app should explain how the app uses permissions (e.g. access to location data) by providing users with specific, contextual information about what the app will do with each permission granted by the user.
  • Social Media Logins: If an app uses social media logins, then the app should explain to users how the app collects and uses the information made available by those services.
  • Permission is Not Consent: A user’s permission for an app to access personal information may not constitute the meaningful consent required by privacy laws. Meaningful consent is based on disclosure of the purposes for which personal information is collected, used and disclosed.
  • Provide Privacy Information: An app should provide access to privacy information even if the app does not collect personal information.
  • IncludePrivacyInformationin App: Privacy information should be accessible from within an app, either through integration with the app’s functions or through a link to a privacy policy that addresses the “small screen challenge”.
  • Permit Access to Privacy Information: Privacy information disclosures should not be “one-time-only”. An app should permit individuals to revisit privacy information at any time.

Comment

The Canadian Privacy Commissioners’ guidance is a helpful reminder of the basic principles of Canadian privacy law, and the fundamental requirement for informed, meaningful consent to the collection, use and disclosure of personal information. The guidance is generally consistent with similar guidance issued by other governments and regulatory authorities, including Mobile Privacy Disclosures, Building Trust Through Transparency (U.S. Federal Trade Commission), Mobile privacy: a better practice guide for mobile app developers (Australian Information Commissioner) and Privacy in mobile apps, Guidance for app developers (U.K. Information Commissioner’s Office).