Australia: Senate report recommends privacy reform: Cookies - Behavioural Advertising - Do-Not-Track: How might these reforms affect your Company's website?

Last Updated: 14 October 2011
Article by Ashleigh Fehrenbach and Cate Sendall


Earlier this year, the Senate Standing Committee on Environment, Communications and the Arts (Senate Committee) released its report "The adequacy of protections for the privacy of Australians online" (the Report).1 In the Report, the Senate Committee makes a number of recommendations.

If the recommendations are adopted, there may be significant implications for all companies with an online presence. In particular, your company may need to change the way in which it collects, uses and stores any personal data which it obtains online. Furthermore, companies which do not currently have privacy obligations may be required to comply with the Privacy Act 1988.


The Senate Committee inquiry was commenced in June 2010 as a result of concerns regarding privacy due to the rapid growth in both the use of social networking platforms and technological advancements which make it possible for companies to monitor the online behaviour of their customers for marketing purposes. The Senate Committee's terms of reference included:

  1. data collection and privacy protection on social networking sites; and
  2. the ways in which private companies and government agencies collect data.

Adequacy of Australia's Online Privacy Framework

Due to the development of web 2.0 technologies which allow greater online interaction in respect of user generated content, for example, blogs, social networking sites and video/photo sharing websites, it has become possible to store, share and upload large quantities of personal data onto the web. In addition, it has become easier for website operators to send personal data overseas which, as a result, means that Australian regulators have less control over the manner in which personal data relating to Australians is captured, stored and handled.

Concerns about Consent

Restrictions about the way in which personal data is collected, used and disclosed under the Privacy Act do not apply if an individual provides consent to such use. However, when providing consent, people are often required to read lengthy and complex privacy policies and waive their rights in order to use the website. The Senate Committee recommended that:

  • the complaint handling role of the Privacy Commissioner be "expanded to more effectively address complaints about the misuse of privacy consent forms in the online context"2; and
  • the Privacy Commissioner's Office should examine consent in the online environment and create guidelines on how privacy consent forms for online services may be appropriately used.3

Concerns about Small Business

Most Australian businesses do not need to comply with the Privacy Act because they are excluded from the definition of "organisation" under the Act. A small business is defined as one which has an annual turnover of $3,000,000 or less. The Senate Committee recommended that, while the small business exemption should be retained, it should be amended so that small businesses:

  • holding substantial quantities of personal data; or
  • which transfer personal data offshore,

will be required to comply with the Privacy Act.4

Concerns about Online Behavioural Advertising

The Senate Committee recommendations concerning online behavioural advertising have broad implications for online businesses. Presently, there are a variety of ways in which data may be collected about individuals when providing targeted or behavioural advertising to consumers. Among those activities in which individual data may be collected in this manner, which are not currently prohibited under Australian law, are:

  • a search engine's ability to track the web browsing history of its users;
  • the use of cookies to trace users who access particular websites; and
  • the use of a filter by web-based email service providers to search the content of users' emails to look for key words and then provide the user with advertisements based on the key words found within their email.

In addition, users of social media websites often provide a considerable amount of personal data when registering to use the websites, such as age, sex, address, interests and so forth, which may be used by social media websites or third parties to provide targeted advertising.

The Senate Committee acknowledged that the development of the above technologies led to greater concerns about the level of possible monitoring. The Senate Committee noted that the United States Federal Trade Commission recommended the development of a "do not track" tool in the United States which would allow users to opt out of web tracking by third parties, including behavioural advertising. Two separate bills addressing this issue are currently before the US Congress. The "Do Not Track Me Online Act" was introduced by Representative Jackie Speier on 2 February 2011. If this bill is adopted, the Federal Trade Commission (FTC) will promulgate regulations requiring "covered entities" to disclose to users:

  • the ways in which the entity collects information about users' online activities and personal details,
  • how that information is used, and
  • the persons to whom that information is disclosed.

The regulations will also give users the opportunity to opt-out of having their information collected or used in this manner.

The second bill, the "Do-Not-Track Online Act of 2011" was introduced by Senator Jay Rockefeller on 9 May 2011. This bill requires the FTC to establish standards for "do-not-track" mechanisms. Companies will need to provide mechanisms by which an individual user can opt-out of having their personal information collected. Companies will be prohibited from collecting the personal information of individuals who have opted-out via the "do-not-track" mechanisms. The second bill will apply to providers of mobile applications and services as well as providers of online services.

Also, in May 2011, the United Kingdom government implemented a European directive which makes it more onerous for website operators to use cookies. The European regime will require companies to obtain the consent of the user before cookies are placed on their computers.

The Senate Committee noted that there is an industry-wide initiative to develop privacy standards in respect of advertising targeting online behaviour. In March 2011, the Australian Digital Advertising Alliance (ADAA) released the Australian Best Practice Guideline for Online Behavioural Advertising, which included a number of self-regulatory guidelines, including the following:

  • explicit consent prior to using online behavioural advertising should be obtained from website users; and
  • an easy to use mechanism should be provided to enable users to withdraw their consent.

Members of the ADAA include the Australian Direct Marketing Association, the Internet Industry Association, the Media Federation of Australia, the Communications Council and the Interactive Advertising Bureau.

The Senate Committee recommended that the Privacy Commissioner's office should consult with industry participants, including the advertising industry, web browser developers and internet service providers, to develop and impose a code which includes a "do not track" mechanism5.

Transnational Information Flow

The Senate Committee recommended that the Privacy Act be amended so that a company will be treated as having an Australian link (and thereby be caught by the Privacy Act) where it collects information from Australia. There will be no need for the company to be incorporated in Australia or otherwise have any other link to Australia (beside the fact that it collects information). 6

In respect of cloud computing, the Senate Committee recommended that the Privacy Act be amended so that all Australian organisations transferring personal data offshore are required to be fully accountable in respect of the protection of the privacy of the personal data. 7

Further, the Senate Committee recommended that the Government consider whether such provisions are enforceable and, if required, strengthen the Privacy Commissioner's powers to enforce provisions related to offshore data transfer.8

Cause of Action - Breach of Privacy

A number of organisations, including the Australian Law Reform Commission, the Law Institute of Victoria and the Victorian Privacy Commissioner, submitted that a statutory cause of action for serious invasions of privacy should be developed. The Senate Committee noted that statutory and common law causes of action for breach of privacy are found in many other jurisdictions, including the United Kingdom, the United States and New Zealand.

The Senate Committee agreed with the Australian Law Reform Commission's recommendation that a cause of action be provided by statute for serious breaches of privacy and should be adopted by the Government.9

In light of the recent News of the World telephone hacking scandal in the United Kingdom, there will no doubt be increased support for this cause of action in Australia.


Clearly, should the Senate Committee's recommendations be adopted, the reforms will have implications for all companies with an online presence. Companies will likely have to change the way they obtain consent from consumers, revise their privacy policies and modify their practices, for example, by changing the way in which they use cookies. Further, the Privacy Act may be amended to cover businesses not required currently to comply with the Privacy Act.

We will keep you informed of further developments.

The assistance of Alec Bombell, Clerk, of Addisons in the preparation of this article is noted and greatly appreciated


1 The Senate: Environment & Communications Reference Committees, "The adequacy of protections for the privacy of Australians online", April 2011. Visited on 6 June 2011.

2 Recommendation 3.30.

3 Recommendation 3.31.

4 Recommendation 3.50.

5 Recommendation 3.86

6 Recommendation 3.96.

7 Recommendation 3.109.

8 Recommendation 3.110.

9 Recommendation 3.122.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Cate Sendall
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.