Matthew Jacobs and Daniel Roth (summer student)

“… we cannot be a Blockbuster government serving a Netflix society.” – The Hon. Minister Navdeep Bains paraphrasing the Hon. Scott Brison (May 2019, at the Empire Club of Canada)

Innovation, Science and Economic Development (ISED) Canada has announced Canada’s new Digital Charter. Announced on May 21, 2019, the Digital Charter consists of 10 principles that are intended to inform the direction and substance of the federal government’s future legislation, regulation and programming. The purpose of the Digital Charter is to build a foundation of trust with the Canadian public to support Canada’s pivot towards becoming a digital- and data-driven economy and society.

The 10 Digital Charter principles

The 10 principles that comprise the Digital Charter are:

1. Universal access: All Canadians will have equal opportunity to participate in the digital world and the necessary tools to do so, including access, connectivity, literacy and skills.
2. Safety and security: Canadians will be able to rely on the integrity, authenticity and security of the services they use and should feel safe online.
3. Control and consent: Canadians will have control over what data they are sharing, who is using their personal data and for what purposes, and know that their privacy is protected.
4. Transparency, portability and interoperability: Canadians will have clear and manageable access to their personal data and should be free to share or transfer it without undue burden.
5. Open and modern digital government: Canadians will be able to access modern digital services from the Government of Canada, which are secure and simple to use.
6. A level playing field: The Government of Canada will ensure fair competition in the online marketplace to facilitate the growth of Canadian businesses and affirm Canada’s leadership on digital and data innovation, while protecting Canadian consumers from market abuses.
7. Data and digital for good: The Government of Canada will ensure the ethical use of data to create value, promote openness and improve the lives of people—at home and around the world.
8. Strong democracy: The Government of Canada will defend freedom of expression and protect against online threats and disinformation designed to undermine the integrity of elections and democratic institutions.
9. Free from hate and violent extremism: Canadians can expect that digital platforms will not foster or disseminate hate, violent extremism or criminal content.
10. Strong enforcement and real accountability: There will be clear, meaningful penalties for violations of the laws and regulations that support these principles.

The genesis of the Digital Charter

The Digital Charter is based upon the results of ISED’s 2018 National Digital and Data Consultations. Three key areas were identified that Canadians view as critical in supporting the transition towards a digital economy:

1. attracting and developing talent with the appropriate skills for a digital economy and supporting upskilling and reskilling as the economy transitions,
2. enhancing the competitiveness of Canadian companies on the global stage, and
3. ensuring that data is being used in ways that respect Canadians’ rights to manage their data, and providing greater control over, and security around, data creation, collection, use and erasure through world-class regulation.

Canada’s Innovation Plan

• In a May 2019 letter to Canada’s Commissioner of Competition, Minister Bains highlighted the government’s view that pro-competition, pro-consumer practices would play a key role in fostering the growth of digital SME innovation and the rebuilding of consumer confidence in the digital marketplace.
• In the 2019 Federal Budget, CA$5-6 billion was earmarked for investment in developing high-speed internet connectivity infrastructure for 100% of Canadians by 2030, especially those in rural, remote and Indigenous communities.
• The government is investing in Canadian business through the Innovation Superclusters Initiative (for more see our earlier publication, The Ocean Supercluster – Navigating Innovation Together) and through the creation of unified business support services in the form of Innovation Canada, and by supporting the growth of Canada’s artificial intelligence sector.
• A Statistics Advisory Council will be established to provide advice to government bodies that use or manage data collected from Canadians, and the Standards Council of Canada will work to standardize data governance requirements to create a level playing field between businesses and consumers.
• The government will also be conducting reviews of the Personal Information Protection and Electronic Documents Act (PIPEDA), the Privacy Act, and Canada’s Anti-Spam Legislation, among others, to ensure that the protections afforded to Canadian consumers and businesses are reflective of the current digital environment and align with global best practices, such as the European Union’s General Data Protection Regulation (GDPR). These legislative changes are intended to promote a culture of “privacy by design” in which companies address privacy as part of their business model, rather than as an add-on.

Digital Charters internationally

Digital Charters are beginning to appear globally. The British Government released a policy paper in April 2019 outlining principles and actions that will form their Digital Charter, focusing on open and equitable access and consumer rights, literacy and protection. The UK Digital Charter includes a Social Media Code of Practice, the introduction of a new statutory duty of care for companies in relation to addressing harmful online content and activity on their websites, and a variety of exploratory projects to enhance the UK digital economy. The European Union released the second draft of a “Charter of Digital Fundamental Rights of the European Union” in April 2018 for further public consultation, which consists of 18 principles intended to provide guidance for European and state legislators as they work to address the challenges of a transitioning digital economy.

What will the Digital Charter do?

Currently it is not clear what effects Canada’s Digital Charter will have. Early questions about the direction and substance of Canada’s Digital Charter focus on whether it will be an effective tool for regulating an economic space that is driven by monopoly players. Where the Digital Charter presents “an ambitious, aspirational principled approach to digital and data transformation in Canada” but was not accompanied by any legislative or regulatory reforms, it is unclear whether the Digital Charter will develop the teeth to serve as the Government’s foundation of trust for a data-driven digital economy in a society where digital life occurs cross-border on a regular basis.

Think: Innovation

As legislation, regulation and programming under the Digital Charter begins to roll out, we may see changes to competition law, privacy law (especially around trans-border data flows), cybersecurity law, and intellectual property law. At Stewart McKelvey, we are closely monitoring Canada’s Digital Charter for impacts this may have on our clients. We take innovation into application.

This update is intended for general information only. If you have questions about the above, please contact Matthew Jacobs.

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