Modifications to Bill 64 as Adoption in 2021 Remains Likely

The Québec bill proposing substantial amendments to an Act respecting the protection of personal information in the private sector (Bill 64) keeps making progress through the legislative process, as  the parliamentary committee recently published its report, including by proposing further changes to that piece of legislation.

The commission proposed several modifications to the initial version of the bill, including the following:

  1. Creating certain new rights for individuals as to their personal information;
  2. Requiring businesses to check, beforehand, that information exported outside Québec would be protected by laws (in the other jurisdiction at issue) that are “adequate”;
  3. Adding an obligation to inform individuals of the actual identity of third-party businesses and partners to which the organization may be disclosing information (as opposed to merely disclosing the types of third parties);
  4. Allowing business to delegate the roles of their Chief Privacy Officer (as required under the bill), to someone outside the company, if they so choose (for example, to allow outsourcing of that function if no one in the company has the requisite expertise);
  5. Forcing businesses that use information that has been depersonalized, to take reasonable precaution against eventual use of such information to “reidentify” the individuals at issue;
  6. Allowing use of personal information, even without consent, for purposes of delivering products or providing services to the individuals at issue;
  7. Allowing use of personal information, even without consent, in the context of purchase-type corporate transactions, but also other commercial operations such as mergers, financings, etc.;
  8. Expressly adding to the Québec statute the possibility of settling claims against businesses that violated the statute, by having them enter into undertakings with authorities, as is allowed under the Federal statute;
  9. Modifying the amount of certain penalties provided by Bill 64, being understood however that the maximum penalty of $25M (or 4% of annual turnover) remains untouched;
  10. Limiting what business must provide to individuals who ask to see “their” own data, by excluding therefrom data that was indirectly produced or induced from the initial data actually provided by each individual.

It is generally agreed Bill 64 is likely to complete the legislative process in 2021, as its formal adoption seems more than likely to follow before the end of the year, with fairly minimal modifications being made to it between now and then.

Canada a Little Closer to Recognising Right to be Forgotten

The Federal Court recently issued a decision further to a reference triggered by the Privacy Commissioner and involving Google, and in particular the extent to which search engine may be considered businesses that are governed by rules pertaining to the protection of personal information. In short: yes, Google should be considered a normal business and, yes, search engines may be considered as holding and using personal information.

In practice, one consequence of the recent ruling at issue is that individuals the personal data of whom is held and displayed by the likes of Google, when third parties make searches on the Web, would seem to be covered by normal rules requiring that the information be up-to-date, exact and still relevant. In short, in certain cases, it could be that individuals may require search engines to stop their algorithms from referencing inaccurate or obsolete information.

Though the Federal Court decision at issue was technically NOT about the right to be forgotten, this judgment does open the way for Canadians to claim a right to deindexation of erroneous or obsolete Web search results, akin to the right to be forgotten that European law now grants citizens. This could happen with or without legislative changes to provide for it expressly.

Though people are already invoking the right to have stuff about them deindexed (by search engines), for now, providers like Google aren’t too keen to start recognizing that such a right does indeed exist in the U.S. or Canada. Now, as the Privacy Commissioner starts investigating and processing complaints about search engine results, to be seen whether a right to deindexation will indeed materialize in Canada, and how fast.

Québec Looking to Curtail English (and Other Languages) Trademarks Through Revised French Charter

The Québec government recently tabled a bill, called Bill 69, that seeks to amend several statutes, including the province’s Charter of the French Language, so as to better protect the French language. This bill seeks to consolidate existing rules, so as to reinforce the idea that French is the sole official language of the province of Québec, including in principle in how business is conducted.

Interestingly, as to I.P., the revised Charter would do away with an exception that legislators had inserted in the original statute, namely that trademark were generally exempted from complying with normal rules, including on store signs. Indeed, up to now, the Charter accepted that trademarks, whether registered or unregistered, were essentially outside the scope of what could be regulated by this provincial statute. As such, the OQLF could hardly enforce rules meant to force businesses to use and display French (e.g. on store signage, etc.), whenever trademarks were involved. This lead many businesses to adopt and use English-based trademarks, something that Québec courts eventually confirmed as totally acceptable under the existing Charter of the French Language.

This provides context to Bill 69’s introduction, as the Québec government is clearly now attempting to slam the door shut on that trademarks exception, to the fullest extent (legally) possible. To do, the revised version of the French Charter would essentially restrict what are considered trademarks for purposes of the exception explained above. If/when the bill goes through, the only trademarks that would remain considered protected from the obligation of being shown in French, are marks that have been duly registered, period. In effect, this would do away with trademarks displayed by businesses that did not bother or did not manage to register in Canada.

Québec cannot forbid non-French trademarks (because of the Canadian Constitution), but it can try and restrict what it will consider a trademark for the purposes of its language laws, which is exactly what this is about.

Setting aside the issue of whether legally a province may do something like this, businesses may want to start preparing for the proposed changes to the French Charter, by simply registering their marks, assuming they haven’t done so already. Though large companies will usually have done so, a lot of small and medium sized businesses do not bother registering their marks, preferring to fall back on common law rights. If those marks are in a language other than French, this may soon become a problem.

Fortunately for SMEs, registering a mark in Canada is relatively inexpensive, as compared to other jurisdictions. Businesses should however take note that typical delays are now around 3 years to register a mark in Canada. Given that the French Charter’s new provisions on trademarks will come into force 3 years after adoption of the bill, businesses the trademarks of which have not already been registered may want to get on it.

Mind you, Bill 69 has not yet been formally adopted but with a majority government in Québec at the moment, it seems to make little doubt that the bill will be adopted at some point.