Recent changes to Data and Privacy Laws in Australia and the EU

With rapid changes to online activity and the proliferation of Software as a Service (SAAS) businesses need to become familiar with and comply with rapidly changing legal requirements of most countries. The below is a summary of recent changes to consider if you access or store personal information of others, whether you are a NFP or a Company.

New Data and Privacy Laws Australia

This summary does not discuss the Meta data retention laws that came into effect in February 2018.

Notifiable Data Breaches scheme

The Notifiable Data Breaches (NDB) scheme under Part IIIC of the Privacy Act 1988(Privacy Act) establishes requirements for entities in responding to data breaches. Entities have data breach notification obligations when a data breach is likely to result in serious harm to any individuals whose personal information is involved in the breach.

The NDB scheme applies to all agencies and organisations with existing personal information security obligations under the Australian Privacy Act from 22 February 2018.

The NDB scheme introduced an obligation to notify individuals whose personal information is involved in a data breach that is likely to result in serious harm. This notification must include recommendations about the steps individuals should take in response to the breach. The Australian Information Commissioner (Commissioner) must also be notified of eligible data breaches.

Agencies and organisations can lodge their statement about an eligible data breach to the Commissioner through the Notifiable Data Breach statement — Form.

Agencies and organisations must be prepared to conduct a quick assessment of a suspected data breach to determine whether it is likely to result in serious harm, and as a result require notification.

Which data breaches require notification?

An ‘eligible data breach’, which triggers notification obligations, is a data breach that is likely to result in serious harm to any of the individuals to whom the information relates.

A data breach occurs when personal information held by an organisation is lost or subjected to unauthorised access or disclosure.

Examples of a data breach include when:

  • a device containing customers’ personal information is lost or stolen
  • a database containing personal information is hacked
  • personal information is mistakenly provided to the wrong person.

Who Must Comply

This includes Australian Government agencies, businesses and not-for-profit organisations with an annual turnover of $3 million or more, credit reporting bodies, health service providers, and TFN recipients, among others.

Data breach response plan

Agencies and organisations should also prepare or update their data breach response plan to ensure they are able to respond quickly to suspected data breaches, and conduct an assessment as required under the NDB scheme. The OAIC’s Data breach notification — A guide to handling personal information security breaches and Guide to developing a data breach response plan provide a best practice model you can use to inform your data breach response plan.

GDPR: Europe’s New Privacy Laws

The EU General Data Protection Regulation (GDPR) is the most important change in data privacy regulation in 20 years

Stricter regulations for collecting consent

Enforcement date: 25 May 2018 – at which time those organizations in non-compliance may face heavy fines.

Who does it apply to?

Arguably the biggest change to the regulation of data privacy comes with the extended jurisdiction of the GDPR. It applies to all companies processing the personal data of data subjects residing in the Union, regardless of the company’s location. Businesses of any size may need to comply with the GDPR if they have an establishment in the European Union (EU), if they offer goods and services in the EU, or if they monitor the behaviours of individuals in the EU.

Who does the GDPR affect?

The GDPR not only applies to organisations located within the EU but it will also apply to organisations located outside of the EU if they offer goods or services to, or monitor the behaviour of, EU data subjects. It applies to all companies processing and holding the personal data of data subjects residing in the European Union, regardless of the company’s location.

The obligations are placed upon data ‘controllers’ and data ‘processors’. A ‘Controller’ generally means a business that determines how the data will be processed or used. A ‘Processor’ generally means a business that processes the data on behalf of the controller.

What does it apply to? What constitutes personal data?

Any information related to a natural person or ‘Data Subject’, that can be used to directly or indirectly identify the person. It can be anything from a name, a photo, an email address, bank details, posts on social networking websites, medical information, or a computer IP address.

Breach Notification

Under the GDPR, breach notification will become mandatory in all member states where a data breach is likely to “result in a risk for the rights and freedoms of individuals”. This must be done within 72 hours of first having become aware of the breach. Data processors will also be required to notify their customers, the controllers, “without undue delay” after first becoming aware of a data breach.

Right to Access

Part of the expanded rights of data subjects outlined by the GDPR is the right for data subjects to obtain from the data controller confirmation as to whether or not personal data concerning them is being processed, where and for what purpose. Further, the controller shall provide a copy of the personal data, free of charge, in an electronic format. This change is a dramatic shift to data transparency and empowerment of data subjects.

Right to be Forgotten

Also known as Data Erasure, the right to be forgotten entitles the data subject to have the data controller erase his/her personal data, cease further dissemination of the data, and potentially have third parties halt processing of the data. The conditions for erasure, as outlined in article 17, include the data no longer being relevant to original purposes for processing, or a data subjects withdrawing consent. It should also be noted that this right requires controllers to

compare the subjects’ rights to “the public interest in the availability of the data” when considering such requests.

Data Portability

GDPR introduces data portability – the right for a data subject to receive the personal data concerning them, which they have previously provided in a ‘commonly use and machine readable format’ and have the right to transmit that data to another controller.

Privacy by Design

Privacy by design as a concept has existed for years now, but it is only just becoming part of a legal requirement with the GDPR. At it’s core, privacy by design calls for the inclusion of data protection from the onset of the designing of systems, rather than an addition. More specifically – ‘The controller shall…implement appropriate technical and organisational measures…in an effective way.. in order to meet the requirements of this Regulation and protect the rights of data subjects’. Article 23 calls for controllers to hold and process only the data absolutely necessary for the completion of its duties (data minimisation), as well as limiting the access to personal data to those needing to act out the processing.

Digital Marketing

It comply with the GDPR, marketers will only be allowed to send email to people who have opted-in to receive messages. While this has already been the case in most European countries under the EU Privacy Directive, GDPR specifies the nature of consent that’s required for commercial communication. From 25 May 2018, marketers have to collect affirmative consent that is “freely given, specific, informed and unambiguous” to be compliant with GDPR. Consent must be clear and distinguishable from other matters and provided in an intelligible and easily accessible form, using clear and plain language.

In addition, the signup process must inform subscribers about the brand that’s collecting the consent and provide information about the purposes of collecting personal data.

New requirements for consent record keeping

The GDPR not only sets the rules for how to collect consent and must be in intelligible and easily accessible form, but also requires companies to keep record of these consents. It must be as easy to withdraw consent as it is to give it.

The primary difference between the GDPR and the Australian Privacy Act is who must comply. The Privacy Act applies to Australian businesses that collect personal information.

The definition of ‘personal information’ and ‘personal data’ under these laws is similar it refers to ‘information that identifies an individual’.

However, the Privacy Act applies where a business has revenue greater than $3 million. In contrast under the GDPR all businesses (regardless of size of their regardless of revenue) must comply.

Amanda Karpeles

CEO

Raise DM Pty Ltd

 

Nothing in this article is designed to offer legal advice. If you think this applies to your organisation you need to conduct your own assessment and seek appropriate legal advice as appropriate.

References: Office of the Australian Information Commissioner 31 May 2017. General Data Protection Regulation guidance for Australian businesses. website :www.oaic.gov.au.