Let’s chat about the world of website cookie privacy laws in Canada and what it takes to comply with them in order to help ensure you’re not going to run into any legal trouble!
So, grab a coffee (and a cookie), and let’s get started.
What is a Website Cookie?
A website cookie is a small piece of data that a website stores on a user’s device (such as a computer, smartphone, or tablet) while the user is browsing. Cookies serve many functions, and can help user experience by remembering things like login details, personal preferences, behaviors, browsing history and more.
In short, they make your browsing life online easier.
Why are some people worried about Cookies?
People have concerns about website cookies mainly in relation to their privacy and security.
Here are some of the reasons why cookies can be a potential source of worry:
1. Tracking and Profiling
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- Behavioral Tracking: Cookies can track a user’s browsing habits across multiple sites, creating detailed profiles of their behavior and preferences.
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- Targeted Advertising: Information collected through cookies is often used for targeted advertising, which some people find invasive.
2. Data Privacy
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- Personal Information: Cookies can store personal data like login credentials, location, and other sensitive information. This raises concerns about who has access to this data and how it is used (like for evil purposes!)
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- Data Sharing: Third-party cookies can lead to data being shared between different websites and companies without explicit user consent – meaning you never gave your permission to have your information shared with a big corporate monster!
3. Security Risks
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- Cookie Hijacking: If cookies are not securely managed, they can be intercepted by malicious people through techniques like “session hijacking”. Sounds techie, and it is! This can lead to unauthorized access to a user’s information, which could provide access to accounts and personal information.
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- Malware: Some cookies can be exploited to deliver malware or track users’ activities without their knowledge – not cool 🙁
4. Lack of Transparency
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- Unclear Policies: Many websites do not provide clear information about how cookies are used, what data is collected, and who it is shared with. This lack of transparency can make users uncomfortable.
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- Implicit Consent: Often, users are not fully aware that they are consenting to cookie use, especially with the use of pre-ticked boxes or implicit consent mechanisms. People should always be able to choose who has their data, and how it’s being used.
5. Regulatory Compliance
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- Legal Concerns: With regulations like the GDPR in Europe and PIPEDA in Canada (see below), there are legal requirements for how cookies must be managed, including obtaining explicit consent from users (not just implied consent). Non-compliance can lead to legal consequences (see below!), adding another layer of concern for both users and website owners.
Cookie consent – The legal stuff!
In Canada, the primary legislation governing privacy and data protection is the Personal Information Protection and Electronic Documents Act (PIPEDA).
While PIPEDA doesn’t explicitly mention cookies, it does cover the collection, use, and disclosure of personal information, which can include information collected through those sneaky cookies. The Canada Anti-Spam Legislation (CASL) also plays a role, particularly when it comes to cookies that are used for marketing purposes.
CASL and Cookies
CASL focuses on stopping certain forms of electronic communications without consent – like an email you didn’t want to get (i.e. spam!). While it mostly targets spam, it also covers some other techie stuff like the installation of computer programs, which can include cookies, particularly those used for tracking purposes.
So what can I do to make sure my website is cookie compliant?
1. Consent Management:
- Explicit Consent: Ensure users give explicit consent before cookies are set. This involves presenting a clear and concise cookie banner or popup that users can interact with to accept or reject cookies.
- Granular Consent: Allow users to manage their preferences by giving consent to specific types of cookies (e.g., essential, functional, performance, and marketing cookies).
2. Cookie Declaration:
- Detailed Cookie Information: Provide a detailed list of all cookies used on your website, including their purpose, duration, and third-party involvement. This information should be easily accessible, usually through a cookie policy or a link in the cookie banner.
- Regular Updates: Automatically update the cookie list to reflect any changes or additions to the cookies used on the website.
3. User Rights Management:
- Access and Deletion Requests: Facilitate user requests to access their data or delete cookies. This aligns with user rights under privacy laws.
- Consent Withdrawal: Allow users to withdraw their consent at any time, with a clear and easy-to-use mechanism for doing so.
4. Automatic Cookie Blocking:
- Pre-consent Blocking: Automatically block non-essential cookies until the user provides consent. This prevents cookies from being set before user consent is obtained.
5. Cookie Auditing and Reporting:
- Regular Audits: Perform regular audits of the cookies in use to ensure compliance and identify any unauthorized cookies.
- Compliance Reports: Generate compliance reports that document consent records and cookie management practices, useful for audits and regulatory inquiries.
6. Customization and Branding:
- Customizable Banners: Offer customization options for cookie banners to match the look and feel of your website while maintaining clarity and compliance.
- Language Support: Provide multilingual support to cater to users who speak different languages, ensuring that consent requests are understood by all users.
7. Third-party Cookie Management:
- Third-party Integrations: Manage cookies from third-party services (e.g., analytics, advertising) to ensure they comply with your site’s cookie policy and user consent.
If you need a hand adding a cookie compliant plugin to your website, let us know as we’d be more than happy to help you!
Here’s a few other things you should also do:
1. Conduct a Cookie Audit
Start by figuring out what types of cookies your website uses. This includes:
– Essential cookies: Necessary for the website to function.
– Performance cookies: Used to improve the website’s performance.
– Functionality cookies: Enhance the user experience.
– Targeting/Advertising cookies: Track users for advertising purposes.
If you’re not sure about these cookies, talk to your website developer as they should know!
2. Create a Cookie Policy
Your cookie policy should be easily accessible and written in clear, simple language. It should include:
– A list of all cookies used on the site.
– The purpose of each cookie.
– Information on how users can manage or delete cookies.
– Details on how users can withdraw their consent.
It’s also a good idea to have a separate cookie policy page, along with your privacy policy, so people can quickly see what your cookie policies are!
3. Regularly Review and Update Your Cookie Practices
No one likes to review the legal stuff over and over, but regulations and best practices evolve, so it’s important to review your cookie practices every once in a while, to ensure your continued compliance. Here’s a few things to check:
– Regularly auditing the cookies used on your site – sometimes when new plugins are added, there are more and different kinds of cookies added.
– Updating your cookie policy as needed.
– Ensuring your consent mechanism reflects any changes in the types of cookies used or their purposes.
Need a hand with this too? We’re here to help if you need us.
Penalties for Not Complying with Cookie Policies
No one wants to get a fine because of their website, especially for something as avoidable as the cookies it has.
PIPEDA Penalties
Under PIPEDA, if your organization fails to comply, the Office of the Privacy Commissioner of Canada (OPC) can:
– Conduct investigations and audits.
– Issue public reports detailing non-compliance.
– Make recommendations for compliance.
While PIPEDA itself doesn’t have significant financial penalties, non-compliance can lead to:
– Reputational damage: Public reports can harm your brand’s reputation.
– Loss of business: Customers may choose competitors who are compliant with privacy laws.
So there’s no sense in potentially having your business or reputation damaged for something that can be easily managed and maintained.
CASL Penalties – yep, there’s money involved!
CASL is known for its stringent enforcement and hefty fines. If you violate CASL by installing cookies without consent, you could face:
– Administrative monetary penalties (AMPs): Up to $1 million per violation for individuals and up to $10 million per violation for businesses. The key here is “up to” these amounts, which means these amounts are the maximums… but you really don’t want any kind of fine here.
– Private right of action: Individuals and organizations affected by non-compliance can sue for damages – yikes!
Real-World Examples of Financial Consequences Due to Non-Compliant Cookie Practices!
Thankfully, specific financial penalties for cookie-related violations in Canada are less common, but larger privacy violations can still provide context for the potential impact. Here are a few:
– Rogers Communications (2009): Faced scrutiny from the OPC for behavioral advertising practices. While there were no direct fines, the investigation led to significant changes in their data handling practices and public relations challenges.
– PlentyofFish (2015): The dating site was fined $48,000 under CASL for sending commercial emails without proper consent and installation of cookies without user knowledge.
– Porter Airlines (2015): Fined $150,000 under CASL for similar violations, including inadequate consent for cookies.
These examples highlight that while direct fines for cookie violations might not always be massive, the associated costs of compliance, reputational damage, and legal fees can add up.
Putting It Altogether!
Navigating the landscape of cookie privacy laws in Canada might seem daunting, but with the right approach, it’s definitely manageable.
But don’t worry, we’re here to help if you need a hand.
Contact us if need any assistance!
