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If you operate an online platform–be it a website or a mobile app–you probably also collect, use, or disclose personal information. If so, you are required to have a privacy policy[1]. Privacy policies explain to your patrons what data you collect, why you collect that data, how that data will be used, and how you will protect that information.

The Office of the Privacy Commissioner of Canada suggests a number of tips to improve your online privacy policy, including: ensuring that it is easy to contact the business regarding the policy, and ensuring that the policy itself is easy to find and navigate.[2]

There are various types of agreements which you can use to obtain the consent of your patrons to use their personal information. Click-wrap agreements and scroll-wrap agreements are common ways to obtain a user’s consent.

Click-wrap agreements

Click-wrap agreements are one form of agreement which companies may employ to request users to agree to terms and conditions over the internet. These agreements require, for example, users to click a button or check a box to assent to the terms and conditions. The terms and conditions can be made accessible to the user through a conspicuous hyperlink adjacent to the assent mechanism. A user must typically “click” to agree in order to enter the site.

Scroll-wrap agreements

Scroll-wrap agreements require users to scroll through the terms and conditions before the user can assent. These agreements should adequately display the terms, instruct the user to scroll downward to read the entire agreement, and indicate that the terms are binding. Then, the user can click to agree.

Determining whether to use click or scroll wrap involves balancing interests. For example, it may be more “user friendly” to use just click wrap and not require explicit acceptance. But, this may mean courts may not be as open to enforcing terms and conditions, if mandatory explicit scroll wrap consent was needed.

Should you have any questions or comments, Siskinds Privacy, Cyber & Data Governance team can assist with creating a policy that suits your needs.

[1] Personal Information Protection and Electronic Documents Act, SC 2000, c 5, Schedule 1, s 4.3.

[2] “Ten tips for a better online privacy policy and improved privacy practice transparency” (November 2018), online: Office of the Privacy Commissioner of Canada <https://www.priv.gc.ca/en/privacy-topics/collecting-personal-information/02_05_d_56_tips2/>.

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