"I consent (subject to what the Privacy Commissioner deems meaningful)": A blueprint for the private sector on meaningful consent for 2019.
"Informational privacy is often equated with secrecy or confidentiality […] Privacy also includes the related but wider notion of control over, access to and use of information" – R. v. Spencer, 2014 SCC at paras. 39 and 40.
With the coming into force of the Guidelines on Meaningful Consent [the "Guidelines"] on January 1, 2019, private sector companies operating within Canada may need to fundamentally alter their practices and redraft their policies to be compliant with law.
According to the Guidelines issued by the Office of the Privacy Commissioner of Canada [the "OPC"], obtaining meaningful consent will require greater transparency about how data is collected, used and disclosed. The OPC also has emphasized that "express consent" is the default, and that implied consent will only be appropriate in limited circumstances.
Today, consent must be informed, voluntary and meaningful – but what does this actually mean?
Meaningful consent is informed by context, leaving organizations with the generic response "it depends on the circumstances". However, what seems clear is that the OPC will not accept policies that use "legalese" and will require companies to go beyond fine print that few consumers have the time, energy, interest or desire to read.
While it is not possible to know exactly what the OPC will require until the Guidelines are applied and interpreted, private sector organizations should review their policies and practices now with a view to implementing the best practices that the OPC has mandated.
The background: "Reasonable expectation of privacy" and "meaningful consent" in Canadian Law
In an age where the collection, use and disclosure of personal information from consumers is considered axiomatic for the development of businesses, the meaning of "consent" to collect, use and disclose has become more muddled than one would hope.
Given the ease and pace at which information is shared, one might argue that the breadth of information available to companies suggests that consumers have voluntarily relinquished control over the information they disclose.
To the contrary, this theory was laid to rest by the Supreme Court of Canada, which recognizes that informational privacy includes the "wider notion of control over, access to and use of information".
Relatedly, the Supreme Court of Canada has recently issued several decisions in the criminal law context that address reasonable expectations of privacy and provide an overarching framework for issues such as the scope of implied consent and when an individual will be considered to have "waived" their privacy rights. While the case law in this area engages the criminal law domain, the broader privacy principles and themes contain useful information for the private sector.
Consider just a few highlights from privacy cases in more recent years, all of which are echoed in the OPC's new Guidelines:
- R. v. Reeves, 2018 SCC 56: An individual can maintain a reasonable expectation of privacy in a shared device (in this case, a computer). This decision provides that the consent of one user to disclose information to authorities on a computer does not nullify the co-user's reasonable expectation of privacy. "Waiver by one rights holder does not constitute waiver for all rights holders" (para. 52). Organizations should be alive to how this decision impacts consent in the private sector and affects practices such as mining of social media accounts for information relating to "friends", referral programs that ask individuals to provide others' contact information, and the handling of joint accounts between spouses and family members.
- Royal Bank of Canada v. Trang, 2016 SCC 50: The Court agreed that financial information is "generally extremely sensitive", however, the degree of sensitivity is contextual and must be assessed in relation to related financial information that already exists in the public domain. Here, consent for the purpose of assisting a sheriff in executing a writ of seizure and sale was implicitly given when the mortgage was issued, which provided one bank with the authority to disclose a mortgage discharge statement to another bank.
- R. v. Marakah, 2017 SCC 59: Lack of control over information is not fatal to a privacy interest. While this decision was made in the context of text messages between co-accused parties, the Court confirmed that individuals can exercise meaningful control over information exchanged via text message by "making choices about how, when and to whom they disclose the information" (para. 39).
Overview of the guidelines: mandatory and "optional" principles for implementation by the private sector
In the Guidelines, the Privacy Commissioner has outlined seven (7) principles to highlight several indicia of meaningful consent. The criteria are in keeping with the evolution of technology and the expectations of privacy consumers have in relation to their data.
Some guidelines are mandatory and many private sector companies will require at least some revision to existing privacy practices and policies in order to comply. Others are offered as principles that "should be" followed. In practice, many of the "mandatory" versus "optional" principles appear to overlap, with the effect that implementation of all should be considered to the extent they are relevant to the organization and its information handling practices. For ease of reference, the principles are summarized below:
(1) Emphasize Key Elements of Consent ( Mandatory ): This principle requires organizations to place additional emphasis on the following elements when seeking consent from consumers:
- Explain what personal information is being collected with precision to better inform the consumer;
- Enumerate third parties with whom personal information will be shared;
- Explain the purposes for which the information is being collected, used and/or disclosed. Organizations should avoid vague terms. Purposes that are integral to provisions of service should be distinguished from those that are not; and
- Explain the risks of harm and other consequences: Meaningful risks are those that are more than minimal or merely possible ones. Significant harm includes bodily harm, humiliation, damage to reputation, loss of employment, business or professional opportunities, financial loss, identity theft, negative effects on credit records and damage or loss to property. These types of consequences should be clearly delineated so individuals are aware of residual risks that remain after mitigation measures are put in place by the organization.
(2) Allow individuals to control the level of detail they get and when ( Should Do ): Information should be presented in a layered format or one that supports user control. The idea is to summarize key points upfront. Consent should not be eternal once provided – choices should be provided throughout the business relationship for individuals to reconsider whether to maintain or withdraw consent.
(3) Providing clear options to say yes or no ( Mandatory ): Organizations must make clear whether the collection, use or disclosure of information is a condition of service. The consumer must be given choices. If presented as "mandatory", the collection, use and disclosure of personal information must be integral to the provision of the product or service.
(4) Be innovative and creative ( Should Do ): Avoid superimposing paper-based privacy policies online. Take advantage of online platforms including customized mobile interfaces that are user-friendly, interactive online tools and notices that explain why information is being requested (e.g. one's age or location).
(5) Consider the consumer's perspective ( Mandatory ): Consent and accessibility are paramount in communicating with users. Information should be accessible by a range of target audiences and on various devices.
(6) Make consent a dynamic and ongoing process ( Mandatory ): Consent is not static. Rather, it is dynamic. For example, when revising privacy practices, users must be notified and consent must be obtained prior to the coming into effect date.
Note that periodic auditing of information management practices is encouraged, although not presented as a mandatory requirement.
(7) Be accountable and be ready to demonstrate compliance ( Should Do ): Be prepared to demonstrate compliance with a privacy regulator.
While these principles appear facially broad, they are designed to provide organizations with flexibility and discretion in determining appropriate forms of consent contingent on the type of information gathered.
In determining what type of consent regime is necessary, organizations should consider the nature of the information that is being collected, used or disclosed in designing consent regimes. For example, while Canadian law does not prescribe information pertaining to one's health, financial well-being, or religiosity as being "sensitive" and therefore requiring express consent, in most contexts, this type of information will reasonably be considered as sensitive. Additionally, sometimes a constellation of information, when compiled and analyzed, can be telling of a consumer's predispositions and values (See for example R. v. Spencer, 2014 SCC 43) and therefore will become sensitive in its context given the nature of its compilation and use.
The Guidelines reflect a normative appreciation for the speed with which information can be obtained and subsequently used in other ways. The Guidelines stand as a reminder to the private sector that the capacity to collect, use and disclose information does not negate one's privacy interest, nor does it abrogate one's ability to withdraw consent.
Practically speaking, the Guidelines will challenge organizations to think more critically about how to simplify legalese in a way that is comprehensible for users who prefer speedy transactions without the fine print. The Guidelines not only will be enforced by the OPC, but more fundamentally, might be expected to shift consumer perceptions regarding the level of transparency offered by organizations with whom they are interacting. Organizations with less voluminous consent regimes that are easily accessible, retrievable throughout the consumers' interaction, and understandable, can be expected to fare well with consumers who are frequently being asked to provide information in exchange for a service.
Importantly, in considering a consent regime, organizations must only collect, use or disclose information for purposes that a reasonable person would consider appropriate in the circumstances. What is "reasonable" maintains a sense of fluidity as organizational structures evolve, markets demand change, and consumer values evolve. However, the OPC appears to take the position that the collection, use and disclosure of personal information may exceed a "reasonableness" threshold if the consumer is required to consent to collection, use and disclosure that is "beyond what is necessary to provide the product or service". In that sense, the measure of reasonableness has an objectively verifiable metric.
Consider implementation of these guidelines as a mechanism by which your organization can be transparent and relatable to consumers. Implementation of the Guidelines by the OPC comes at a time when consumer scrutiny of privacy is high and tolerance for opaque policies and practices is low.