Privacy, Data Protection & Information Management – Page 3

Update from the Australia/New Zealand privacy conference and the changes to Australian privacy and cybersecurity laws

Nov 25 2022

By Cameron Abbott, Rob Pulham and Stephanie Mayhew

We’ve just returned from the annual iapp Australia/New Zealand privacy conference held in Sydney this week, and it was a whirlwind. Even if you’re not one of around half of Australians affected by two of the biggest data breaches in our recent history, you’ll be aware a lot is changing – and a lot more is poised to change – in this space.

We’ll be blogging over the coming weeks about some of the key themes and changes your organisation will need to prepare for, including:

– new regulatory enforcement tools

– higher expectations of the way personal information is collected and secured, and when it needs to be destroyed

– potential removal of key exemptions such as the employee records exemption that your business may currently rely on,

– and of course the major penalty increases that seek to deter privacy breaches being viewed as ‘the cost of doing business’,

as Australia tightens the protections around the collection and use of Australians’ personal information.

Stay tuned!

UK Data Protection: Beware of the consequences of unsolicited marketing emails!

Oct 11 2022

By Claude-Étienne Armingaud and Keisha Phippen

Sending unsolicited marketing emails could prove costly to UK organisations, as bike and car accessory retailer Halfords have recently discovered.

Last month, Halfords were handed a fine of £30,000 by the Information Commissioner’s Office (ICO) for sending around half a million unsolicited marketing email messages to customers who had not previously opted-in to marketing (see here).

The fine was issued under the Privacy and Electronic Communications Regulations (PECR), which gives people specific privacy rights in relation to electronic communications and restricts how unsolicited direct marketing is carried out.

An investigation carried out by the ICO found that the retailer broke the laws governing electronic communications by sending out emails relating to a government voucher scheme that gave people £50 off the cost of repairing a bike at any participating store or mechanic in England. The email not only pointed customers to the government website, it also invited them to book a bike assessment and to redeem their voucher at their chosen Halfords store. The ICO concluded that the insinuation of Halfords having a direct connection with the government scheme encouraged its customers to redeem the voucher in its stores and that Halfords was therefore advertising its own services.

PECR prevents organisations from sending emails or messages to people unless they have consented to it or they are an existing customer who has bought similar products or services in the past (known as the “soft opt-in” rule).

Halfords argued that the email constituted a service message and should not be categorised as direct marketing, but the ICO maintained that the email did constitute direct marketing because it satisfied the definition of such under Paragraph 35 of the ICO’s Direct Marketing Guidance (see here). In addition, the ICO concluded that the soft opt-in rule could not apply because the targeted customers had already opted out.

Andy Curry, Head of Investigations at the ICO said: “This [decision] sends a message to similar organisations to review their electronic marketing operations, and that we will take necessary action if they break the law.”

Privacy and cybersecurity laws expected to undergo a significant overhaul in the wake of Optus data breach

Sep 29 2022

By Cameron Abbott, Rob Pulham and Stephanie Mayhew

Over the past two years, the Privacy Act has been the subject of long-awaited reform in Australia however, it seems the Optus data breach may have given it some much needed momentum.

The Optus attack is understood to have affected the details of 11.2m Optus customers, and of that 2.8m individuals have had their driver’s licence and/or passport numbers compromised. The hacker claims to have extracted the data from an API – software that allows two different systems to talk to each other. Therefore, if the claim is true the hacker didn’t need to provide authentication (e.g. a username and password) to retrieve the data.

In the wake of the attack, the Government has shared its plans to pursue substantial reforms that will include increased penalties under the Privacy Act (currently capped at $2.22m per offence) as well as changes to data breach notification laws to allow companies to rapidly inform financial institutions of affected individuals in an effort to minimise fraud.

The data breach also highlights the risks involved in collecting large amounts of personal information and storing this for excessive time periods. While the Privacy Act promotes the collection of a minimum amount of personal information, i.e. only that information that is necessary for a particular purpose and which the entity intends to use or disclose – individuals generally have limited control over how long their information is retained for.

During the initial stages of the Privacy Act review, the Attorney General’s Department sought submissions from entities on their views as to whether individuals should be given the right to have their personal information erased. Optus in submissions to the review argued against such a change stating that the right to erase personal data would involve significant technical hurdles and compliance costs that would outweigh the benefits. Of course this incident has happened just as stores are gearing up for Halloween – a fitting time for those public submissions to come back to haunt them.

Argentina announces upgrades to data protection obligations

Sep 16 2022

By Cameron Abbott, Stephanie Mayhew and Dadar Ahmadi-Pirshahid

Argentina’s Data Protection Authority, the Agency for Access to Public Information (the Agency), has published a draft bill that proposes to bring Argentina’s 22 year old data protection law more in line with the European Union’s General Data Protection Regulation.

Amongst other things, the bill modernises Argentina’s data protection law to deal with more recent issues including cloud computing, biometric and genetic data. It provides greater scope for international transfers of information by allowing transfers under the sanction of adequate data protection guarantees in the absence of a decision by the Agency that the importing country has adequate data protection. It additionally requires Data Controllers to document and notify the Agency of data breaches within 48 hours of becoming aware of a breach.

The draft bill is open for public comment until 30 September 2022. Any entity wishing to submit commentary is encouraged to reach out to K&L Gates to help facilitate the submission process.

UK Government publishes new proposed data protection law

Jul 27 2022

By Claude-Étienne Armingaud, Nóirín McFadden and Keisha Phippen

The UK Government has finally published its highly anticipated Data Protection and Digital Information Bill (the Bill), marking the first significant post-Brexit change to the UK’s data protection regime. Following Brexit, the UK continued following the EU General Data Protection Regulation, incorporated into UK law as the UK GDPR, and the UK implementation of the EU ePrivacy Directive, the Privacy and Electronic Communications Regulations 2003 (PECR), also remained in force.

The Bill is only at the start of the legislative process, and it remains to be seen how it will develop if it is amended during its passage through Parliament, but early indications are that it represents more of an evolution than a revolution in the UK regime. That will come as a relief to businesses that transfer personal data from the EU to the UK, because it reduces the risk that the EU might rescind the UK’s adequacy status.

For a start, the Bill actually preserves the UK GDPR, its enabling legislation the Data Protection Act 2018, and the PECR, because it is drafted as an amending act rather than a completely new legislative instrument. This does not contribute to user-friendliness, as interpreting UK data protection requirements will require a great deal of cross-referencing across texts.

The more eye-catching proposed changes in the Bill include:

The inclusion of a list of “legitimate interests” that will automatically qualify as being covered by the lawful basis in UK GDPR Article 6(e).
Some limitations on data subject access requests, such as the possibility of refusing “vexatious or excessive” requests.
More exemptions from the requirement to obtain consent to cookies.
Much higher fees for breach of PECR.

The Bill will now progress through various Parliamentary stages over the coming months in order to become law.

New World tech fall victim to Old World tricks

Jul 27 2022

By Cameron Abbott, Rob Pulham and Dadar Ahmadi-Pirshahid

OpenSea have reported a breach whereby email addresses registered with the site have been shared with an unauthorised third party.

For landlubbers, OpenSea is the world’s largest marketplace for non-fungible tokens (NFTs).

The Head of Security at OpenSea identified an employee of OpenSea’s third party email delivery vendor as the source of the breach. The employee reportedly misused their access privileges to download and share the list of the site’s registered email addresses with an external party.

People who have shared an email address with OpenSea, such as subscribers to the site’s newsletter, are warned to remain vigilant about attempts by malicious parties to impersonate communications from OpenSea.

OpenSea has dealt with several security incidents this year. Only a month ago, a former OpenSea product manager was arrested and is reportedly the first person to have been charged in connection with a digital asset insider trading scheme. The product manager’s responsibilities included deciding which NFTs would be featured on the site’s homepage, which he allegedly used for his own financial gain. When OpenSea had discovered his conduct in September 2021, OpenSea requested and accepted the product manager’s resignation. Immediately afterwards, OpenSea commissioned a third party review of the incident and implemented the review’s recommendations to strengthen their existing policies.

In May this year, OpenSea’s Discord server was hacked. Just a few months earlier, 254 NFTs valued at around $1.7million USD were stolen through what appear to have been phishing attacks. OpenSea has reportedly reimbursed the victims.

These incidences highlight the status of NFT marketplaces as high value targets for malicious actors and reveals that many of the security vulnerabilities faced in the ‘old’ world of cyber technology remain a threat in the new world of blockchain and NFTs.

Once again, these incidents serve as a reminder for organisations to develop effective cyber security risk management, which requires an approach that encompasses all security vulnerabilities and that includes mechanisms governing employee access and use of sensitive information.

The Importance of Managing DSARs

Jun 28 2022

By Claude-Étienne Armingaud and Inès Demmou

With its December 2021 fine imposed on French telephone operator Free Mobile, the French data protection authority (CNIL) reiterated the importance of responding to data subject access requests (DSARs) within the relevant timeline (usually 30 days), with all the relevant and required information (Article 13 and 14 GDPR) and ensuring the security of users’ personal data (Article 32 GDPR).

Another sanction by the Dutch Supervisory Authority relating to the principle of data minimization confirmed that such DSARs could not be conditioned by overly complex mechanisms, such as a requirement to upload a full copy of an identity document.

These sanctions demonstrate that data subjects have acquired the awareness necessary to exercise their rights, and that data controllers must implement effective channels and internal processes to handle DSARs properly, effectively, in a timely manner, and in a way that would not, in turn, generate its own set of breaches of the GDPR.

To find out more, see our full alert here.

Critical Vulnerability: Vulnerability in Widely Used Open Source Software is Discovered

Dec 24 2021

By Cameron Abbott, Rob Pulham, Max Evans and Ella Krygier

A critical security vulnerability has been discovered in Apache Log4j, an open-source logging library used by many popular Java applications to provide logging functionality for troubleshooting purposes, according to the Australian Cyber Security Centre (ACSC).

The software’s vulnerability, known as Log4Shell, allows for remote code execution, which, if left unfixed, could allow cybercriminals to take control of IT systems, steal personal data, passwords and files, and install backdoors for future access, simply by adding an additional line of arbitrary code. According to the ACSC, malicious cyber actors have used this vulnerability to target and compromise IT systems globally and in Australia, which led the ACSC to publish advice on mitigation and detection recommendations.

Reminder for our Apple-friendly readers

Sep 21 2021

By Cameron Abbott and Ella Richards

Apple has released critical security updates for a vulnerability found by researchers at Citizen Lab for several Apple devices. This includes all iPhones, iPads, Mac Computers, Apple Watches and the Safari Web Browser.

The vulnerability could allow a threat actor to infect devices with spyware without the users knowledge. Once infected, the threat actor could then perform any action on the device that a normal user would. This could include actions like turning the camera and microphone on or recording messages, texts, emails, and phone calls.

Apple encourages all users of their products to update their devices as soon as possible.

UK consults on new data protection regime

Sep 14 2021

By Norin McFadden and Claude-Étienne Armingaud

The UK government has unveiled its much-trailed plans to reform its data protection laws, outlined in a consultation document which is open for public comment until 19 November 2021.

Since Brexit was finalised at the start of 2021, the United Kingdom has retained much of the EU General Data Protection Regulation. The government’s plans, if implemented, would see the UK move away from the EU’s approach in several key ways, which may lead to trouble for the continuation of the adequacy decision granted by the EU in June. If terminated, the adequacy decision, currently permitting free flows of personal data between the EU and the UK, could cause increased costs and bureaucracy for businesses on both sides of the Channel to continue their data transfers.

Some of the changes to the UK GDPR proposed in the consultation document are:

Making the legitimate interests lawful basis easier to use, by publishing a limited, exhaustive list of legitimate interests that organisations can use without having to complete a balancing test.
Removal of the right to human review of decisions made on the basis of solely automated data processing.
Introducing a fee for responding to subject access requests and allowing organisations to refuse to comply with requests at a lower threshold than “manifestly unfounded”, as allowed in the current legislation.

The proposals also introduce potential changes to the UK’s Privacy and Electronic Communications Regulations, including:

Increasing the current maximum penalty of £500,000 for breaches of the direct marketing regulations to the higher of 4% of global turnover or £17.5 million, thereby matching the maximum penalty under UK GDPR.
Removing the requirement for websites to obtain consent before serving some analytics cookies.
Extending the “soft opt in” for direct marketing to organisations other than businesses, such as charities and political parties.

Catagory:Privacy, Data Protection & Information Management