With the cyber threat landscape significantly evolving, we are seeing companies – large and small – experience attacks. Recent high-profile attacks have shown that these breaches are alarming, targeting a range of sectors. With millions of Australians more concerned about their privacy than ever before, the federal government is making privacy a priority with the Attorney-General’s Department recently releasing 116 recommendations to amend the Privacy Act. The federal government has also made proposals to consider a new Cyber Security Act and strengthen existing laws around this space.Read More
As of yesterday, the Privacy Legislation Amendment (Enforcement and Other Measures) Act 2022 (Privacy Enforcement Act) is now in effect after receiving Royal Assent on 12 December 2022.
As we have previously shared, the Privacy Enforcement Act increases the maximum penalties for serious or repeated privacy breaches. For body corporates/organisations this increases the penalty from the current $2.22 million to whichever is the greater of:Read More
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.
On October 25 the Australian Attorney-General’s Department released a draft bill amending the Privacy Act 1988 (the Draft Bill), inviting industry submissions by 6 December 2021.
We have been hearing about an alignment with Australian consumer and competition law penalties for quite some time – and the Draft Bill does not disappoint.
Under the Draft Bill, the maximum penalties applicable to companies for serious or repeated privacy breaches will increase to the greater of:
- $10 million
- three times the value of any benefit obtained through the misuse of information, or
- 10% of the corporate group’s annual Australian turnover.
The Draft Bill also enables the introduction of an online privacy code, covering a wide scope of organisations to regulate social media services, large online platforms and data brokerage services. It is expected that industry will be given the first opportunity to develop the code, for approval by the Commissioner – with the ability for the Commissioner to develop the code in certain circumstances.
Finally, the Draft Bill introduces information sharing powers to facilitate greater engagement between the Information Commissioner and law enforcement bodies, alternative complaint bodies and State, Territory or foreign privacy regulators. This means the Information Commissioner or the receiving authority will be able to share information and documents to more effectively exercise their respective functions and powers.
With regulators banding together, maximum penalties becoming meaningful and a binding online privacy code on the horizon – there has never been a better time to get your Privacy house in order!
On 1 December 2020, the New Zealand Privacy Act 2020 will come into operation and repeal and replace the Privacy Act 1993.
The Privacy Act 2020 modernises New Zealand’s privacy laws and seeks to keep pace with international standards and technology. While New Zealand’s new privacy legislation is not as onerous as other international privacy laws, such as the GDPR, it still introduces significant changes including:
- mandatory data breach notification;
- new investigative and regulatory powers for the New Zealand Privacy Commissioner; and
- new criminal offences and penalties, including fines of up to $10,000.
In December 2019, the Australian Government announced it would conduct a review of the Privacy Act 1988 (Cth).
A year has almost passed and finally the Australian Government has publicly released details about the review. On 30 October 2020, the Australian Government released the Terms of Reference of the review. In particular, the review will cover:
- The scope and application of the Privacy Act
- Whether the Privacy Act effectively protects personal information and provides a practical and proportionate framework for promoting good privacy practices
- Whether individuals should have direct rights of action to enforce privacy obligations under the Privacy Act
- Whether a statutory tort for serious invasions of privacy should be introduced into Australian law
- The impact of the notifiable data breach scheme and its effectiveness in meeting its objectives
- The effectiveness of enforcement powers and mechanisms under the Privacy Act and how they interact with other Commonwealth regulatory frameworks
- The desirability and feasibility of an independent certification scheme to monitor and demonstrate compliance with Australian privacy laws.
The Office of the Australian Information Commissioner (OAIC) has released its report on notifications received under the Notifiable Data Breaches scheme for period January to June 2020.
The OAIC reported 518 breaches were notified to it in the relevant period. The OAIC noted a 3% decrease from the 532 breaches notified in the period July 2019 to December 2019. However, there was a 16% increase on the 447 notifications received during January to June 2019.Read More
Following on from the consultation opened by the NSW Government in July 2019 (the subject of a previous blog), NSW Attorney-General Mark Speakman has committed to introducing a mandatory data breach scheme, according to an article by ITNews.
At present, neither NSW privacy laws nor the notifiable data breach scheme under Part IIIC of the Privacy Act 1988 (Cth) require public sector agencies in NSW to notify the NSW Privacy Commissioner and affected individuals where a data breach creates a risk of serious harm. This led to a consultation conducted by the Department of Communities and Justice in late 2019, which revealed “overwhelming public support” for the introduction of a mandatory data breach scheme in NSW, with the NSW Government “sharing a view” that the relevant scheme should be introduced.Read More
We have blogged numerous times on the notifiable data breach scheme provided for in Part IIIC of Privacy Act 1988 (Cth) including more recently in relation to its success in assisting the preparedness of the health sector to report and respond to data breaches.
Whilst the NSW Information Privacy Commissioner recommends that public sector agencies notify it and affected individuals where a data breach creates a risk of serious harm, neither NSW privacy laws nor the notifiable data breach scheme require public sector agencies in NSW to provide such notification. There are many reasons for state government agencies to mandatorily report data breaches. Informing citizens when privacy breaches occur provides an opportunity for individual protection against potentially adverse consequences, whilst mandatory data breach reporting would address the current under-reporting of data breaches in NSW, which according to the consultation may be the norm.Read More