Privacy Update

By Esther Shainblum and Martin U. Wissmath

Nov 2023 Charity & NFP Law Update
Published on November 30, 2023



Federal Privacy Commissioner Launches Public Consultation for Biometrics Guidance

In an era marked by rapid technological advancements, the Office of the Privacy Commissioner of Canada (“OPC”) is proactively seeking public input to overhaul its guidance for organizations handling biometric information in both public and private sectors. The OPC announced consultations for the new draft guidance on October 11, 2023. The current guidelines, instituted in 2011, are undergoing a crucial re-evaluation due to the transformative evolution of technologies, such as fingerprinting, voice identification, facial recognition, and emerging applications of genetic data.

Commissioner Philippe Dufresne highlighted the escalating frequency of biometric applications in various sectors, citing examples like law enforcement utilizing facial recognition technology and instances where companies deploy voiceprint authentication programs without obtaining necessary consent. Acknowledging the dynamic nature of this field, the OPC underscores the need for updated guidance to ensure that organizations employ these technologies in a manner protective of privacy.

To facilitate this comprehensive update, the OPC has released two draft guidance documents. One document addresses risks under the Personal Information Protection and Electronic Documents Act (“PIPEDA”), the federal law governing privacy in the private sector, while the other focuses on the Privacy Act, which governs how federal institutions handle personal information. Charities and not-for-profits will want to pay attention to the draft guidance for organizations governed under PIPEDA, which sometimes requires compliance from charities and non-profit organizations engaged in commercial activities, and is a best-practice standard for privacy due diligence for all organizations.

Stakeholders, including the general public, are invited to contribute their insights and recommendations to this vital process, underscoring a collaborative effort to shape guidelines that align with both contemporary technological advancements and evolving privacy considerations. The deadline for feedback is January 12, 2024. Feedback can be submitted through the Biometrics guidance — Consultation feedback form on the OPC website.

Commissioner Advocates Robust Privacy Measures to Protect Young People in Digital Era

In an address to the Senate Standing Committee on Access to Information (the “Standing Committee”), Privacy and Ethics, federal Privacy Commissioner Philippe Dufresne (the “Commissioner”) underscored the need for balance between technological innovation and the protection of privacy, particularly concerning the evolving landscape of social media platforms such as TikTok. The Commissioner appeared before the Standing Committee on October 25, 2023, for its study of the Use of Social Media Platforms for Data Harvesting and Unethical or Illicit Sharing of Personal Information with Foreign Entities. Charities and not-for-profits that use social media should ensure that they have comprehensive privacy policies with additional protections to restrict the collection, use, and disclosure of any personal information from children and young people.

Recognizing the considerable potential for innovation and connection in the online realm, the Commissioner highlighted the substantial risks, particularly for young people. In collaboration with counterparts from Quebec, British Columbia, and Alberta, he initiated an investigation into TikTok in February, probing its alignment with Canadian privacy legislation. The focus was on evaluating the validity of consent for the collection, use, and disclosure of personal information, especially that of children.

The Commissioner emphasized the urgency of prioritizing the privacy rights of young people, a significant demographic among TikTok users. Constraints on discussing the company's practices publicly were acknowledged due to the ongoing investigation.

Directing his remarks toward privacy principles, Commissioner Dufresne addressed the unique challenges faced by children in the digital age, emphasizing the necessity for robust safeguards. He underscored the right of children to maintain their innocence even in the digital world, aligning with UNICEF's guidance on the disproportionate impact of digital technologies on young people.

The Commissioner advocated support for potential enhancements in Bill C-27, the Digital Charter Implementation Act, which passed Second Reading in April, 2023 and is currently at consideration in Committee, to emphasize express recognition of children's privacy and best interests. The proposed law should include safeguards against unauthorized access to children's information and considerations regarding the appropriateness of its collection, use, and disclosure.

Highlighting a resolution adopted by provincial and territorial colleagues, Commissioner Dufresne urged organizations to prioritize young people's best interests, advocating for age-appropriate privacy tools and consent mechanisms. He emphasized the rejection of deceptive practices and supported the deletion and de-indexing of information collected from children.

In conclusion, the Commissioner stressed the imperative for government and organizations to act, ensuring young people could benefit from technology without facing risks. Anticipating valuable insights from the TikTok investigation, he looked forward to the progression of Bill C-27, foreseeing enhanced privacy protections for children and minors in the ever-evolving digital landscape.


Read the November 2023 Charity & NFP Law Update