The Government of Manitoba recently enacted the Personal Information Protection and Identity Theft Prevention Act (PIPITPA) to regulate the collection, use and disclosure of personal information by the private sector in Manitoba.1 The statute has not come into force, but this enactment is momentous, as it will enable Manitoba to join the ranks of Alberta, British Columbia and Quebec, which all have their own private sector privacy legislation that is "substantially similar" to the federal Personal Information Protection and Electronic Documents Act (PIPEDA).2 Manitoba is also the first province to move in this direction with an all-encompassing private sector law since 2004.
This significant moment in privacy law in Canada cannot escape a historic parallel. Despite its title, the PIPITPA is almost identical to the 2009 version of Alberta’s Personal Information Protection Act (2009 Alberta PIPA), with word-for-word similarities in many places.3 Similar to the 2009 Alberta PIPA, the PIPITPA is organized by divisions of purpose, protection, access and care, regulation, as well as general provisions. The key differences are that the Alberta legislation takes a different approach on breach notification and on the role of the Privacy Commissioner. Accordingly, many of the experiences under the Alberta Personal Information Protection Act (Alberta PIPA)4 will help guide organizations in Manitoba as to their risks and obligations. Likewise, the case law in Alberta should guide Manitoba courts whenever privacy litigation arises.5
This article will focus on how these two statutes compare and provide commentary on what organizations can do to prepare for the coming into force of the PIPITPA.
Collection, Use and Disclosure of Personal Data
Similar to the federal and provincial privacy legislations, the PIPITPA defines "personal information" very broadly as information about an identifiable individual. As a general rule, but with limited exceptions, consent must be obtained from an individual prior to the collection, use or disclosure of personal information relating to that individual. Alberta courts have taken a common-sense approach to this key definition, but their holdings are under challenge in an appeal on reserve at the Supreme Court of Canada.6
Consent must be "informed consent," which means that the individual must have knowledge of what he or she is consenting to, and it must be provided at the time of collection.7 To ensure informed consent is obtained, organizations will need to clearly state the purposes for the collection, use and disclosure.
Once consent is given, the organization may only collect, use or disclose the information to the extent that it is reasonable for meeting the purposes for which it stated.8 Further, the collection, use and disclosure of the personal information must be necessary for the purposes stated.9
- Exceptions to Consent
As noted above, similar to Alberta and British Columbia’s privacy statutes, the PIPITPA provides specific exceptions to the general rule requiring consent for information collected, used and disclosed.
One such exception is the business transactions exception. The PIPITPA follows the 2009 Alberta PIPA10and the British Columbia Personal Information Protection Act (British Columbia PIPA)11 and defines business transactions broadly to include any purchase, sale, lease, merger, amalgamation, acquisition or disposal of an organization, portion of an organization, security interest or asset of an organization.12
The PIPITPA business transactions exception adopts the 2009 Alberta PIPA provisions and allows for the exchange of personal information that may be necessary to determine whether to proceed with, carry out or complete a business transaction. This exception allows for fairly broad disclosure of information related to identifiable individuals, but is conditional on the parties entering into a confidentiality or non-disclosure agreement.13
- Personal Employee Information
The PIPITPA has also adopted the exception to personal employee information. Similar to the respective privacy legislation in Alberta and in British Columbia, the PIPITPA permits private organizations in Manitoba to collect, use and disclose personal employee information without consent for reasonable purposes related to the recruitment, management or termination of the employment relationship.14However, it should be noted that activities unrelated to recruitment, management or termination may require the employee’s consent.15
- Outsourcing to a Service Provider
Similar to the federal and provincial privacy legislation, the PIPITPA requires the organization to continue to be responsible to ensure service providers that its engagements are in compliance with the PIPITPA.16 Thus, organizations should ensure they review their service contracts with third parties and that the contract contemplates legal obligations with respect to the PIPITPA.
Access to Personal Information
Both the 2009 Alberta PIPA and the PIPITPA allow access to personal information on request of an individual subject to various restrictions including: if the disclosure would reveal confidential information of commercial nature; if collection was collected for investigation or legal purposes; if that type of information is no longer provided to the organization; if the security or safety of an individual is at jeopardy; if another individual’s personal information would be revealed as a result and, finally, if there is no consent.17 It is important to note that information can be severed or corrected.18
Accurate and Complete Personal Information
An organization must make reasonable effort to ensure that any personal information that is collected, used or disclosed is accurate and complete.19
A significant difference in the PIPITPA, compared to the 2009 Alberta PIPA, is that the PIPITPA contains a breach notification provision. Under the PIPITPA, an organization is obligated to notify the individual directly if personal information is lost, accessed or disclosed without authorization. This obligation does not apply where a law enforcement agency is investigating.20
This is different than the mandatory privacy breach notification required under the current Alberta PIPA. Under the Alberta PIPA, organizations are required to first notify the province’s Privacy Commissioner, and not the individual, if personal information under the organization’s control is lost, accessed or disclosed without authorization or has in any way suffered a privacy breach. The Privacy Commissioner makes the decisions as to whether the organization is required to notify the individuals of the breach.21
Further, unlike the mandatory breach notification under the Alberta PIPA, where the notification requirement is only triggered if the harm threshold is met, which is defined as "where a reasonable person would consider that there exists a real risk of significant harm to an individual,"22 the PIPITPA does not have a harm threshold. This seems to suggest that all breaches can trigger notification.
The PIPITPA also creates a right of action for an individual against an organization for damages arising from its failure to: a) protect personal information that is in its custody or control or b) provide reasonable notice if the organization was not satisfied that the lost, stolen or accessed information would be used lawfully. Unlike the Alberta PIPA, the PIPITPA does not require notification to individuals before transferring personal information to foreign service providers.
Retention of Information
An organization may retain personal information for legal or business purposes as long as it is reasonable and consent has not been withdrawn or varied. This section is identical in both the 2009 Alberta PIPA and the PIPITPA.
The PIPITPA, similar to the 2009 Alberta PIPA, contains a division on professional regulatory and non-profit organizations. The 2009 Alberta PIPA contained an entire division on the role and power of the Privacy Commissioner, which included the restrictions and entitlements of the position, including reviews and orders. Manitoba does not have a Privacy Commissioner and, for most duties that require this position, the PIPITPA has assigned the role to the Ombudsman. Currently, the Manitoba Ombudsman is responsible for upholding access to information and privacy rights by investigating complaints and reviewing compliance with the Freedom of Information and Protection of Privacy Act and the Personal Health Information Act.
However, since the PIPITPA creates a private right of action for damages relating to the failure to protect personal information, or the failure to provide notice of a material breach, it is possible that private litigation will wield an equally if not more significant influence compared to the Ombudsman’s activities.
Once the PIPITPA comes into force, there may be a brief transitional period in which both it and the PIPEDA apply to activities with a connection to Manitoba. This transitional period would end when the Governor in Council enacts a regulation deeming the PIPITPA to be "substantially similar" to Part I of the PIPEDA. Thereafter, organizations will be exempted from the application of the PIPEDA in respect of the collection, use or disclosure of personal information that occurs within Manitoba, but will remain subject to the PIPEDA or other provincial privacy laws in terms of any collection, use or disclosure that crosses borders. Thus, it is important to avoid assuming that the PIPITPA will be the final word onmeasure taken regarding privacy issues with a Manitoba connection.
Tips for Businesses
In response to this new Act, organizations operating in Manitoba should:
- designate a privacy officer to ensure compliance under the PIPITPA;
- ensure consent has been obtained prior to collecting, using or disclosing any personal information;
- identify the purposes for the collection, use and disclosure, and limit collection, use and disclosure to those purposes;
- ensure that any collection, use, and disclosure of personal information is reasonably needed to carry out the purposes required;
- develop, implement and review current privacy policies to ensure compliance with the PIPITPA;
- train employees to ensure they understand the organization’s responsibilities and obligations under the PIPITPA;
- use reasonable safeguards to protect personal information from theft, modification, and unauthorized access;
- only keep personal information for as long as reasonable to carry out the business or legal purpose;
- destroy or anonymize records containing personal information once the information is no longer needed.
- take reasonable steps to ensure personal information is accurate and complete to the extent necessary, and not misleading;
- develop an access and complaint-handling procedure;
- review and revise all service contracts and ensure the contracts require the contactor to provide a comparable level of protection; and
- appreciate that compliance with the PIPEDA or other privacy statutes will remain necessary for collection, use or disclosure of personal information that takes place outside Manitoba.