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Focus: Privacy29 October 2007 Partner Catherine Parr, Special Counsel Karin Clark and Articled Clerk Kelly
Griffiths report on proposals in the Australian Law Reform Commission's recent
discussion paper for the reform of Australian privacy laws as they relate to
credit reporting.
Release of the ALRC's Review of Australian Privacy Law: submissions due 7 December 200710 October 2007 Following the release of its Issues Paper about 12 months ago, the Australian Law Reform Commission (ALRC) has now published its three volume (almost 2000 page) Discussion Paper, Review of Australian Privacy Law (Review). The Review contains 301 wide ranging proposals for the reform of Australian privacy law which, if implemented, are likely to affect the way almost every Australian business must handle personal information in future. The ALRC is now in the final stage of its community consultation, and will receive submissions until 7 December 2007, after which it will make a final report to the Attorney-General by 31 March 2008. Given that the ALRC has stated that more than 85 per cent of its reports have been either substantially or partially implemented1, businesses and other organisations that handle large amounts of personal information should familiarise themselves with the proposals that may affect their operations and consider if they should make a submission to the ALRC. The following highlights only a few of the more interesting and significant proposals made by the ALRC. Allens Arthur Robinson will publish further information about the proposals and can also be contacted for more information or to assist in the preparation of submissions. Call for uniformity and a new set of Unified Privacy Principles (UPPs)The Review calls not only for a new set of UPPs to cover both the private sector and the Commonwealth public sector, but also for the new federal UPPs to override state and territory laws health privacy laws covering the private sector. In order to promote more uniformity, which is likely to be welcomed by many stakeholders, the Review also recommends that the states and territories should enact privacy laws applying to their public sectors that would also be based on the UPPs. UPPs would generally be based on the NPPsThe Review recommends that the new UPPs would be based largely on the current NPPs (rather than the Information Privacy Principles that apply to the federal public sector under the current Privacy Act 1988 (the Act)), but with some significant modifications. For example, the proposed UPPs would differ from the NPPs in that the UPPs would provide:
Scope of 'personal information'The Review proposes some change to the definition of 'personal information' so that it will be clearer that the definition will include data such as email addresses, Internet Protocol addresses and mobile telephone numbers in certain circumstances (for example, when it is possible for an organisation to link such data with a particular individual). The Review also proposes that the personal information of persons who have been deceased for 30 years or less should be protected under a new section of the Act, which would provide for a modified version of the UPPs. Removal and modification of exemptionsThe Review recommends that some significant exemptions in the Act should be removed or modified. If adopted these recommendations will greatly increase the application of the Act and any new privacy principles that are enacted. Small businessThe Review proposes that the current small business exemption under the Act, which it notes exempts potentially up to 94% of Australian businesses from the operation of the Act, should be removed. At the same time, it recommends a number of measures that can be taken by the Office of the Privacy Commissioner (OPC) to assist small businesses to comply with the Act. Employee recordsThe Review also suggests removing the employee records exemption in the Act. At the same time, it recommends that the Act be amended to provide that a request for access to evaluative material in relation to employment, appointment or the award of a contract or honour, can be denied if disclosure would breach a duty of confidentiality owed to a third party such as a referee. Media and journalismThe Review proposes in relation to the current exemption for activities in the course of journalism that the term 'journalism' be defined so that it relates to the preparation of material which has the character of news, current affairs or a documentary, or which is commentary or opinion on, or analysis of, such material. It also proposes that better criteria should be established for assessing the adequacy of media privacy standards for the purposes of an organisation gaining the benefit of this exemption. A new statutory cause of action for invasion of privacyAnother significant recommendation is that the Act should be amended to provide for a new cause of action that would provide individuals with a civil remedy where there has been an 'invasion of privacy', for example, where an individual:
where there is a 'reasonable' expectation of privacy and the 'invasion' is serious enough to cause substantial offence to a person of ordinary sensibilities. If enacted, this recommendation would be likely to radically change the nature of the remedies that Australian individuals are entitled to for any perceived breach of privacy. Credit reportingThe Review proposes that Part IIIA of the Act, which currently specially regulates credit reporting and credit information, be repealed and that credit reporting be regulated under the general provisions of the Act and the UPPs, but with additional regulations imposing obligations on credit reporting agencies and credit providers in relation to the handling of credit reporting information. The Review also makes many other substantial recommendations, such as:
Powers of the OPC and compliance with the ActThe Review also recommends that the powers of the OPC be extended, so that, for example:
The Review also recommends that the Act be amended to allow a civil penalty to be imposed where there is a serious or repeated interference with the privacy of an individual. Data breach notificationAnother interesting reform called for by the Review is the insertion in the Act of a new Part which would require agencies and organisations to notify the Privacy Commissioner and affected individuals when specified personal information has been acquired by an unauthorised person and this may give rise to a real risk of serious harm to any affected individual. Failure to notify the Privacy Commissioner may attract a civil penalty.
Focus: Telecommunications7 August 2007 The
past two months has seen a crackdown by the Australian Communications and Media
Authority on unsolicited electronic messages. Special Counsel Karin Clark and
Lawyer Suzanne Komattu-Mathews report on the outcome of three recent decisions
under the Spam Act 2003
(Cth).
Focus: Privacy13 June 2007 Judge Felicity Hampel in the Victorian County Court recently held that the
general law now offers protection to 'private information' under both the
equitable action of breach of confidence and a new tort of invasion of privacy.
Special Counsel Karin Clark, Lawyer Maree Norton and Articled Clerk Adam Butt
consider the extent this groundbreaking decision, if upheld, is likely to
increase an individual's right to control the publication of 'private
information' about themselves.
Information Privacy Bill introduced in Western Australia26 April 2007 On 28 March 2007 the Information Privacy Bill 2007 (WA) (the Bill) was introduced into the Western Australian Legislative Assembly and received its second reading. The main objectives of the Bill are to:
According to the explanatory memorandum the Bill, amongst other things, also:
AAR will provide an update on the progress of the Bill.
Victorian decision on breach of privacy as an actionable wrong19 April 2007 A Victorian County Court judge has held that a breach of privacy can be an actionable wrong which gives rise to a right to recover damages 'according to the ordinary principles governing damages in tort'. In Jane Doe v ABC and ors1, Judge Felicity Hampel found that the ABC was liable to pay over $230,000 to 'Jane Doe' because it had reported her real name as part of a radio news item about the sentencing of her husband, who was convicted of her rape. The judge found that it was established that the broadcast had a significant effect on Doe's recovery from her trauma, inducing post traumatic stress disorder. Doe brought an action on the grounds of breach of statutory duty, negligence, breach of confidence and invasion of privacy and succeeded on all four grounds. Breach of statutory dutyThe ABC's statutory duty to Doe was based on section 4 (1A) of the Judicial Proceedings Reports Act 1958 (Vic), which prohibits the publishing of information which identifies a person as the victim of a sexual assault. Her Honour found that the ABC's (and its journalists') breach of this law also made the ABC civilly liable to Doe for the injury she suffered as a result of the breach. NegligenceIn dealing with the negligence claim, Hampel J found that the defendants owed Doe a duty of care not to publish information which would identify her, as 'she had a legitimate expectation…that her identity as a victim of sexual assault would not be published, and there was a reasonably foreseeable risk that if they did publish identifying information, she would be injured.' The ABC owed Doe a duty of care because it had the power to widely disseminate her information and was obliged by statute not to do so, distinguishing this case from the kind where, for example, a person spreads information by word of mouth. Breach of confidenceIn dealing with breach of confidence, Her Honour followed the reasoning in leading English cases which have held that there is no longer a requirement for a pre-existing relationship of 'trust and confidence' in order for confidential information to be protected. Instead, confidence may be breached where the information is information 'in respect of which a person has a reasonable expectation of privacy' and a person publishes that information in circumstances where they knew or ought to have known of that reasonable expectation of privacy. In this case, Her Honour held that the information in question was easy to identify as private. Breach of privacyIn the most ground-breaking part of her judgment, Judge Hampel also held (in addition to finding a breach of confidence) that the relevant breach of privacy was 'an actionable wrong which gives rise to a right to recover damages according to the ordinary principles governing damages in tort'. She determined that the current case was 'an appropriate case to respond, although cautiously, to the invitation held out by the High Court in Lenah Game Meats'2 to do so. This holding in this case, unless overturned on appeal, will clearly expose journalists, media organisations and all publishers to a new range of claims where it can be established that a person's privacy has been breached by the unjustified publication of private information. It is understood that an appeal has been lodged. Footnotes
Australian Law Reform Commission releases plain-English guide to the Inquiry into the Privacy Act 198812 December 2006 The Australian Law Reform Commission (the ALRC) has released a plain-English guide to its Inquiry into the Privacy Act 1988 (Cth). The guide, titled 'Reviewing Australia's Privacy Laws: Is Privacy Passé?', is an overview of the two Issues Papers released by the ALRC in October and December 2006. The 28 page overview (available at http://www.austlii.edu.au) highlights and summarises in plain English, some of the key issues that the ALRC is exploring as part of the Privacy Inquiry. The overview also contains anonymous comments made by members of the public during the National Privacy Phone-in, conducted by the ALRC on 1-2 June 2006 as part of its Inquiry. The overview is aimed at members of the general public and was released to reflect the ALRC's interest in gauging the views of all Australians in relation to privacy. The ALRC will also produce an overview of the Discussion Paper when it is released in mid-2007.
Australian Law Reform Commission releases Issues Paper on credit reporting provisions in the Privacy Act 198812 December 2006 The Australian Law Reform Commission (the ALRC) has launched its second Issues Paper as part of its Inquiry into the Privacy Act 1988 (Cth) (the Act). The Issues Paper, titled 'Review of Privacy – Credit Reporting Provisions', examines the content, operation and regulation of the credit reporting provisions contained in Part IIIA of the Act, associated provisions and the Credit Reporting Code of Conduct. It sets out arguments for and against comprehensive credit reporting and its potential impact on privacy, examines a range of reform options (including the introduction of separate legislation to regulate credit reporting) and calls for public comment on Australia's credit reporting system. Some of the specific issues being considered by the ALRC include:
The ALRC has already held some consultations with experts in the credit reporting field as part of its Inquiry. The ALRC will now undertake further consultations in relation to the Issues Paper with a wide cross-section of stakeholders including: credit reporting agencies; representatives of the banking and finance industries and other credit providers; consumer representatives and advocacy groups; state and territory departments of fair trading and other bodies; academics and lawyers with expertise in privacy; and federal, state and territory privacy commissioners. The closing date for submissions in response to this Issues Paper (available
at
http://www.austlii.edu.au/) is 9 March 2007.
Access Card framework announced8 November 2006 The Minister for Human Services, Mr Joe Hockey, today released the Federal Government's response to the first Report of the Consumer and Privacy Taskforce into the proposed Health and Social Services Access Card. Many of the Taskforce's recommendations were supported in the Government's response. Among other things, the Government clarified that:
The Privacy Commissioner, Ms Karen Curtis, welcomed the generally positive response of the Government to the Taskforce's recommendations but also called for the Access Card legislation to include strict privacy controls, including limitations on the use of the Card, prevention of unauthorised access to the information on the Card, its chip or the underlying register, prevention of unauthorised uses and disclosures (including data matching) and sanctions and remedies for breaches. Here is the Privacy Commissioner's response.
Victorian Privacy Commissioner issues new Guidelines to the Victorian Information Privacy PrinciplesOctober 2006 A new edition of the Guidelines to the Information Privacy Principles has recently been issued by the Office of the Victorian Privacy Commissioner. Issued five years after the coming into operation of the Victorian Information Privacy Act 2000, the new Guidelines (at over 170 pages) are much more substantial than the first edition and reflect the case studies, experience and many other developments (both in Victoria and in other jurisdictions) that have occurred in those five years. As the Victorian Information Privacy Principles are closely modelled on the National Privacy Principles (or NPPs) under the Commonwealth Privacy Act 1988 (rather than the Commonwealth Information Privacy Principles that apply to the Commonwealth public sector) many of the comments, illustrative cases and discussions in the Guidelines are likely also to be valuable to private sector organisations that are bound by the NPPs. As the new Guidelines come after the passing in Victoria of the Charter of Human Rights and Responsibilities Act 2006, which recognises the right to privacy as a human right, the Guidelines also discuss how the new Charter may be relevant to the interpretation and application of the Victorian Information Privacy Principles. The new Guidelines can be accessed at http://www.privacy.vic.gov.au.
Australian Law Reform Commission releases Issues Paper in its Inquiry into the Privacy Act 1988October 2006 In January this year, following the Review of the Private Sector Provisions of the Privacy Act 1988 by the Office of the Privacy Commissioner and the Inquiry into the Privacy Act 2008 conducted by the Senate Legal and Constitutional References Committee, the Attorney-General, Mr Philip Ruddock, asked the Australian Law Reform Commission (ALRC) to conduct an Inquiry into the extent to which the Privacy Act 1988 (the Act) and other laws provide an effective framework for the protection of privacy in Australia. In response, the ALRC has now issued a wide-ranging and voluminous (over 600 pages) Issues Paper, which canvasses questions such as:
The ALRC will now engage in wide-ranging consultation about the questions that it has raised in the Issues Paper, and expects to release a Discussion Paper in mid 2007. It will also issue a separate issues paper on the consumer credit reporting provisions of the Privacy Act in December 2006. The closing date for submissions in response to the Issues Paper (which can be found at http://www.austlii.edu.au) is 15 January 2007. The ALRC expects to make its final Report in March 2008.
Victorian Workplace Privacy law passedSeptember 2006 The Victorian Parliament has now passed the Surveillance Devices (Workplace Privacy) Act 2006, which amends the Surveillance Devices Act 1999 and extends the 1999 Act's restrictions on:
According to the second reading speech delivered by the Victorian Attorney-General, Mr Rob Hulls, the new law is the initial stage in the development of a more comprehensive regime to protect privacy in Victorian workplaces. It arose out of one of the key recommendations of the Victorian Law Reform Commission's report, entitled Workplace Privacy Final Report, which was issued in October 2005. In the meantime, the Victorian Law Reform Commission has also announced that it is now turning its attention to the regulation of surveillance in public places and whether law reform is necessary to ensure surveillance and the publication of photographs without consent is appropriately controlled. The Commissioner has announced that it will release a consultation paper in 2007 that will detail the issues involved and invite submissions from the public.
Workplace Privacy Reform: Surveillance Devices (Workplace Privacy) Bill (Vic)13 September 2006 The Surveillance Devices (Workplace Privacy) Bill 2006 (Vic) (the Bill) has been introduced into the Legislative Assembly by the Victorian Attorney-General, Rob Hulls. The Bill, which amends the Surveillance Devices Act 1999 (Vic):
In restricting employers from placing workers under surveillance in workplace toilets and change rooms, the Bill implements one of the key recommendations of the Victorian Law Reform Commission's report, entitled Workplace Privacy Final Report (October 2005) (the Report). However, this represents only a limited adoption of the proposals of the Report. Other recommendations of the Report, which are not reflected in the Bill, included a prohibition on employers subjecting workers or prospective workers to genetic testing without authorisation from the regulator and engaging in acts or practices that interfere with the privacy of a worker where the worker is engaged in non-work related activities. According to the second reading speech delivered by Rob Hulls, the Bill is the initial stage in the development of a more comprehensive regime to protect privacy in Victorian workplaces. Indeed, the measures in the Bill do not cover computer surveillance or tracking surveillance, both of which are regulated by the NSW Workplace Surveillance Act 2005. In her report into the Review of the Private Sector Provisions of the Privacy Act 1988 (Cth) (the Privacy Act), the Privacy Commissioner noted that as a result of the employee records exemption in the Privacy Act, inconsistent legislation is being enacted by state and territory governments in order to deal with employment privacy issues such as workplace surveillance. The Privacy Commissioner recommended that the Australian government consider setting in place mechanisms to address inconsistencies, including in the area of workplace surveillance, that have come about as result of the various exemptions in the Privacy Act. The Australian Law Reform Commission (ALRC) is currently conducting an Inquiry into the Privacy Act and is likely to consider the issue of workplace surveillance (together with the Victorian Law Reform Commission's work), given that the Terms of Reference for the Inquiry require the ALRC to consider relevant existing and proposed Commonwealth, State and Territory practices and also the needs of individuals for privacy protection in an evolving technological environment. An Issues Paper in expected to be released by the ALRC in September 2006, with a final report and recommendations to be delivered in March 2008.
Privacy Commissioner submissions on Access Card12 September 2006 The Office of the Privacy Commissioner (the Office) has responded to the first Discussion Paper released by the Department of Human Services' Access Card Consumer and Privacy Taskforce (the Taskforce). The Access Card is an initiative to create one card, containing an information chip, to be used by an individual for a number of government services. The aims of the card are twofold; first, to increase user convenience, and second, to reduce the fraudulent use of government services. In its submission, the Office emphasises the need for a multifaceted approach in protecting the privacy of individuals, particularly where there is the potential to alienate people from using government services such as Medicare, which is currently used by 9 million individuals. People who are likely to be alienated (eg, people with a mental illness or people who have potentially stigmatising conditions such as HIV/AIDS) may be reluctant to participate in government support schemes without assurance that their private information is protected and will not be misused. In particular, the Office proposes a four element approach for implementing mechanisms to ensure privacy protection.
Overall the submission made by the Office attempts to balance the individual's privacy rights with the aims of the Access Card. The Access Card is scheduled to be phased in from 2008 until 2010.
New Biometrics Privacy Code approvedThe Privacy Commissioner has announced the approval of the Biometrics Privacy Code (the Code) which is to come into operation from 1 September 2006. The Code was developed by the Biometrics Institute and subscription to the Code will only be available to members of the Institute, who can choose to be bound by it. Government agencies may choose to follow the Code (or to prefer tenderers who are subscribers to the Code) but they will not be legally bound to comply with it. As required by section 18BB of the Privacy Act 1988 (the Privacy Act), the standards in the Code are at least equivalent to the NPPs. One area in which the standards in the Code exceeds the standards set for the private sector in the Privacy Act is where a biometric is included in an employee record, or a biometric has a function related to that employee record. Where this occurs, the Code will override the employee records exemption in the Privacy Act and apply to employee records in which a biometric is stored or which are protected by a biometric. In addition, the Code incorporates three principles which supplement its other principles that are equivalent to the NPPs. Supplementary PrinciplesPrinciple 11 supplements the privacy principle in NPP 4 with respect to protection of biometric information. The Principle states that biometric information should (wherever practicable) be encrypted immediately after collection, the original biometric information should be destroyed after encryption, and that (wherever practicable) biometric information should be stored only in encrypted form. Principle 11 also regulates the length of storage time for biometric information, where it should be held, and access to biometric information. Principle 12 enhances NPPs 1 and 2.4. For example, Principle 12 states that enrolment in biometric systems must be voluntary (unless required by law) and that enrolled individuals must be informed of any change in the scope or purpose of the system. Secondary analysis or function creep of biometric information is not permitted without the express informed consent of the individual. In addition, individuals will have the opportunity to have their information removed upon request, where possible. Principle 13 also enhances NPP 1 in that it requires Code subscribers to disclose the purpose for which a biometric system is being deployed. In addition Principle 13 provides for the implementation of third party auditing to ensure compliance with all aspects of the Code. It also provides that a Code subscriber must consider 'end to end' privacy management issues when providing a product or service to an information technology system. This enhances and supports NPP 4 and requires Code subscribers to take a holistic view of managing privacy across an enterprise. Another unique provision of the Code is that Code subscribers are required to be aware and take account of the relevant national and international standards for information protection and biometric systems which may prevail from time to time. AdministrationThe Code will be administered by the Biometrics Institute Secretariat, under the direction of the Biometrics Institute Board. An Independent Code Review Panel will also be established, which will comprise an independent chairperson and an equal number of consumer and industry representatives which the Biometrics Institute Board may nominate from time to time. The Code does not implement its own industry complaints system; but rather mandates that subscribers have their own complaints system and ensure that complainants will be able to refer their complaints to the Privacy Commissioner if a complaint has not been satisfactorily resolved within 30 business days. The Code can be accessed through the Biometrics Institute website.
Federal Privacy Commissioner publishes case notes 10-18, 2006The Office of the Privacy Commissioner has recently published a number of interesting new Case Notes, covering the following issues:
For more, see our summaries or full case notes published on the Commissioner's website.
'Do Not Call Register' laws are passedThe Minister for Communications, Information Technology and the Arts, Senator Helen Coonan announced on 22 June 2006 that the legislation to create a National Do Not Call Register had passed through Parliament. As a result, a new National Do Not Call Register is expected to be up and running in 2007. In brief, the laws will allow a National Do Not Call Register to be established so that:
However, a number of exemptions from the legislation will be available to certain organisations and persons, including:
The Do Not Call Register will be established and regulated by two Acts, the Do Not Call Register Act 2006 and the Do Not Call Register (Consequential Amendments) Act 2006. In brief, the Do Not Call Register Act 2006 (Act) sets out the legislative regime to enable individuals to opt-out of receiving unsolicited telemarketing calls. Under the Act, the Australian Communications and Media Authority (ACMA) is responsible for implementing and overseeing compliance with the Register. To that effect, ACMA is provided with the powers to issue formal warnings, infringement notices and an ability to initiate court proceedings. The Do Not Call Register (Consequential Amendments) Act 2006 requires ACMA to develop industry codes and standards relating to telemarketing calls, including minimum contact standards (about matters such as times when telemarketers can call and the information they must give). These standards will apply to all telemarketers, including those that are exempt from the general prohibitions under the main Act.
Privacy Reform: Privacy Legislation Amendment Bill 2006The Privacy Legislation Amendment Bill 2006 (Cth) (the Bill) has been introduced into the House of Representatives by the Attorney-General, Phillip Ruddock MP. The Bill has two key aims, namely to ensure on a permanent basis that medical practitioners are not in breach of the Privacy Act 1988 (Cth) (the Privacy Act) by collecting information from the Prescription Shopping Information Service (PSIS) and to clarify the treatment of genetic information under the Privacy Act. Information from the PSISThe Bill ensures that the collection of information about patients under the Prescription Shopping Information Service by doctors is allowed under the Privacy Act. The Bill does this by inserting an amendment into the National Health Act 1953 (Cth) that provides that such collections are authorised for the purposes of the National Privacy Principles (or NPPs), in particular for the purposes of NPP10, which relates to the collection of sensitive information. While the Federal Privacy Commissioner has issued temporary public interest determinations that currently allow such collections, the Bill will have the effect of authorising them on a permanent basis. Genetic InformationThe Bill also implements some of the reforms of the Australian Law Reform Commission and Australian Health Ethics Committee's report, entitled Essentially Yours: The Protection of Human Genetic Information in Australia (March 2003) (the Report). The Bill amends the definition of health information to include genetic information about an individual in a form that is, or could be, predictive of the health of the individual or a genetic relative of the individual. A genetic relative is defined as a person related by blood, such as a sibling, parent or descendant. The Bill also inserts a catch all definition of genetic information to ensure that it is sensitive information even if it is not health information (for example, genetic information about parentage or kinship). This will ensure that all forms of genetic information will have the additional protection that is afforded to 'sensitive' information under the NPPs. The Bill also allows an organisation that is a health service provider to disclose the genetic information of an individual (without the individual's consent) to a genetic relative of the individual if the organisation:
The Bill empowers the Privacy Commissioner to approve guidelines issued by the NHMRC that relate to the use and disclosure of genetic information for the purposes of lessening or preventing a serious threat to the life, health or safety of an individual or their genetic relative. Once the Bill is passed, it will be interesting to see the details of the Guidelines to be issued by the NHMRC, which will need to balance an individual's privacy rights with the rights of genetic relatives to access the individual's personal genetic information, if a health service provider believes that disclosure is warranted in the particular circumstances.
Federal Privacy Commissioner publishes case notes 5-9, 2006The Office of the Privacy Commissioner has recently published a number of interesting new Case Notes, covering:
For more, see our summaries or full case notes published on the Commissioner's website.
Privacy concerns in the report of the Senate Legal and Constitutional Committee on the Exposure Draft of the Anti-Money Laundering and Counter-Terrorism Financing Bill 2005On 09 February 2006, the Senate referred the Exposure Draft of the Anti-Money
Laundering and Counter-Terrorism Financing Bill 2005 (the Exposure Bill)
to the Senate Legal and Constitutional Committee (the Committee) for inquiry and report by 13 April
2006. The Committee has released its report and has noted that the Exposure
Bill, in addition to posing numerous concerns for industry, has particular
implications for the privacy of individuals. The concerns raised by the organisations related to:
In response to these concerns, the Committee has taken the view that:
Additional comments were made by the Australian Democrats who are deeply concerned about the "landslide of privacy incursions made possible by the recent changes in the name of combating terrorism". The Democrats support the Committee's recommendation that an independent PIA be conducted and are of the view that Privacy Impact Assessments should be used to analyse all legislative changes that may infringe the privacy rights of Australians.
ACMA registers an internet industry code on spam6 April 2006 The Australian Communications and Media Authority (ACMA) has registered the Internet Code of Practice - A Code for Internet and Email Service Providers, which will be effective as from 16 July 2006. The new Code applies to internet service providers and email service providers in Australia as well as email service providers that are located outside Australia but who provide email services in Australia. The Code, registered under Part 6 of the Telecommunications Act 1997, will impose on these internet and email service providers a range of new obligations, including:
The Code also recommends that service providers consider and implement best-practice actions that can be taken to assist in the reduction of spam, and gives a number of examples of what are currently thought to be best practice. The Code can be found at www.acma.gov.au. It is intended to be reviewed one year from registration.
Australian Do Not Call Register to be created6 April 2006 The Minister for Communications, Information Technology and the Arts, Senator Helen Coonan, announced on 4 April that a national, legislated Do Not Call Register will be created to protect consumers from nuisance telemarketing phone calls. The announcement said that it is anticipated that the Register will cost over $33 million to set up and will be operational by 2007. While the Australian Government will commit $17.2 million to its costs, it is planned that the remainder of the costs will be met by telemarketeers, who will need to pay a fee to access the Register. Senator Coonan also announced that:
Senator Coonan also said that based on international experience the Government expects that there will be one million registrations in the first week of operation and four million after the Register's first year.
The Privacy Commissioner has recently published four case notes about complaints that it had finalised28 March 2006 1. Failure to take reasonable steps to protectIn the recent case note of B v Australian Government Agency [2006] PrivCmrA 2 (see Complaint Case Note), the Commissioner reported on its investigation of the security of employment information held by a Government agency. The issue arose because other staff had access to computer files containing confidential e-mails and reports regarding an individual's employment records. The agency had an obligation under Information Privacy Principle 4(a) to take reasonable steps to protect personal information from unauthorised access, use, modification or disclosure and against other misuse. The Agency promptly admitted the breach when the Commissioner intervened and the Commissioner applied its conciliation power under section 27(1)(a) of the Privacy Act to resolve the matter. The Agency offered an apology, transferral of the data to a more secure location and payment for the individual to receive counselling as a result of the distress suffered. 2. Unnecessary collection of Personal InformationIn the recent case note of D v Banking Institution [2006] PrivCmrA 4 (see Complaint Case Note), the Commissioner reported on the case where a bank customer complained about being required to supply their marital status as part of an application to open a bank account, on the basis that this information was not necessary for one or more functions or activities of the bank as required by National Privacy Principle 1.1. The bank agreed that the information was not necessary to assess eligibility for a bank account but indicated that its computer system would need to be changed to facilitate such non-disclosure, and that this would take some time. The bank offered to enter a status of 'single' but note on the file that this may not reflect the actual status of the account holder. The individual was not satisfied and complained to the Commissioner. The Commissioner worked in consultation with the bank to ensure its computer system was upgraded so that information about marital status was no longer required to open a bank account. The bank committed to providing quarterly reports to the commissioner on its progress. Further, the banking institution resolved to raise the issue with the industry body as it appeared that collecting such information was common practice across the industry. 3. Denial of access to personal informationIn the case note of C v Insurance Company [2006] PrivCmrA 3 (see Complaint Case Note), the complainant sought access to information about them collected by their insurers in the course of an investigation of a claim made by them. The insurance company refused access to some of the documents sought, claiming that releasing those documents would compromise the privacy of third parties and would reveal commercially sensitive information. NPP6.1(c) allows an organisation to withhold access to information where providing access would have an unreasonable impact on the privacy of third parties. The case note indicates that in considering whether this exception applies, the Commissioner may consider factors such as:
In this case, the Commissioner's view was that providing access to some of the documents would have an unreasonable impact on the privacy of third parties and that masking the names of the individuals, who had provided witness statements in relation to the events that led to the insurance claim, would not be sufficient to prevent their identification. Hence, the insurance company could rely on NPP6.1(c) to refuse access to these documents. However the Commissioner also found that access could be provided to some other documents that identified third parties if their identifying information was masked. NPP6.2 provides that where providing access would reveal evaluative information generated within the organisation in connection with a commercially sensitive decision-making process, the organisation can give an explanation for the decision rather than direct access to the information. In this case, the Commissioner was of the view that the organisation could rely on NPP6.2 in relation to documents that described the type of information the insurance company considered important in assessing insurance claims during an investigation. However the Commissioner also found that in respect of some other documents that contained commercially sensitive components, access could be provided to the majority of the document with the commercially sensitive components masked. The insurance company agreed to the Commissioner's recommendations and the complaint was closed. 4. Improper listing of a payment default on consumer credit information fileIn the case note of A v Credit Provider [2006] PrivCmrA 1 (see Complaint Case Note) the issue for consideration was whether a credit provider had given the complainant a notification under paragraph 2.7 of the Credit Reporting Code of Conduct prior to its listing a payment default on the complainant's consumer credit information file held by a credit reporting agency. Paragraph 2.7 of the Credit Reporting Code of Conduct provides that before a credit provider lists a default, 60 days must have elapsed since the payment was due and the credit provider must have written to the individual advising of the overdue amount and asking for payment. While the complainant was in fact 60 days overdue in the payment of the account, the notification incorrectly stated that the account was only 30 days in arrears. (There was also dispute about whether other correspondence requesting payment of the amount due was sent prior to the default listing.) The Commissioner formed the view that the account statements received by the complainant did not clearly notify the default status of the accounts and the information contained in them were misleading in the circumstances. Hence paragraph 2.7 of the Credit Reporting Code of Conduct had not been satisfied. The credit provider agreed to remove the default listing from the individual's credit file. The complainant claimed they had been refused credit by several credit providers and requested compensation for loss and damage, including humiliation. The Commissioner conciliated the matter, which concluded with a confidential settlement between the parties.
Australian Law Reform Commission to review Privacy Act 19881 February 2006 The Attorney-General, Philip Ruddock, announced yesterday that the ALRC has
been given a new reference to review the Privacy Act 1988. This follows two
recent reports by the Privacy Commissioner and the Senate Legal and
Constitutional Committee which both recommended that a comprehensive review of
the Privacy Act be undertaken. The reference to the ALRC asks it to consider
matters such as those recent reviews, current and emerging international law and
obligations in this area, any relevant constitutional issue, the need for
privacy protection in any evolving technological environment and the
desirability of minimising the regulatory burden on business in this area.
For more see our news archive - 2005. 
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