Australia: Do your apps and mobile sites comply with Australian privacy law?

Privacy Update (Australia)
Last Updated: 1 December 2012
Article by Alec Christie and Reyhaneh Saadati

PRIVACY UPDATE (AUSTRALIA)

In recent years mobile devices such as internet-connected smartphones and tablet computers (mobile devices) have found a place in the everyday lives of most people. The prevalence of mobile devices is highlighted by a study by the research firm Gartner, which has forecast that by 2013 mobile devices will (a) overtake PCs as the dominant way we access the web and (b) reach over 1.82 billion units. Mobile devices are often on and tethered to their user, transmitting rich data to the sellers, analytic services and/or advertisers of applications (apps), exposing users to a wide variety of potential invasions of privacy. Compliance with existing privacy law and/or the need for new privacy protections is an area currently being investigated in the EU.

The rapid growth in popularity of mobile devices has been harnessed by businesses as a fast and effective method for reaching customers. Many businesses have invested in the development of leading-edge interactive apps and internet sites for mobile devices which provide customised and interactive services based on the information they collect from users. In fact, an estimated 98 billion apps will be downloaded by 2015 and the current US$6.8 billion market for apps is expected to grow to US$25 billion within four years.

However, many businesses are overlooking their obligations under Australian privacy law, which also apply to personal information collected through apps and mobile sites via mobile devices. Regardless of the mode of collection, the Privacy Act 1988 (Cth) (Privacy Act) requires businesses with a turnover of $3 million or greater to ensure that individuals are aware of certain mandatory information prior to or at the time any personal information is collected about them. This mandatory information includes the name and contact details of the business collecting the personal information, the individual's right to access their personal information and how the personal information will be used and shared. Such mandatory information is usually provided to individuals in a privacy policy or statement, which the individual is required to accept before any personal information is collected.

Despite the well-known requirements imposed by the Privacy Act, most apps and mobile sites that collect personal information from Australians via mobile devices do not post a privacy policy or statement or otherwise ensure that users are aware of how their personal information is being used and/or disclosed to others. On those rare occasions when privacy policies or statements are included, they are difficult to locate on mobile devices and, if located, are difficult to read and understand as they tend to include a lot of text, often in small font. Even if one does struggle through, such policies or statements often do not clearly identify what personal information is collected and how it is used and shared.

In many cases businesses have policies and procedures in place to ensure compliance with their obligations under the Privacy Act for their online (ie website) presence. However, the pressure to quickly deploy apps and mobile sites into the market has meant that, in practice, businesses are not complying with (or, where required, extending to the mobile device environment) these policies.

Actions under the Australian Consumer Law and future fines

Failure to comply with an existing privacy policy can have costly consequences for a business, particularly in light of the likelihood of damages being awarded against non-compliant businesses in an action under the 'misleading or deceptive conduct' provisions of the Australian Consumer Law. For a detailed discussion of the application of the Australian Consumer Law to breaches of privacy obligations, please see our previous update.

Additionally, the Privacy Amendment (Enhancing Privacy Protection) Bill 2012 currently before the Australian Parliament will, when passed, introduce fines of up to $220,000 for an individual and up to $1.1 million for an organisation for a serious invasion or repeated invasions of privacy. Therefore, businesses should address any shortfalls their apps or mobile sites have now in complying with their privacy policy and the Privacy Act before they are faced with large fines or damages.

Recent spotlight on mobile privacy in the US

In the last week of October 2012, the Attorney-General of the State of California (AG) sent letters to about 100 mobile app developers and companies to formally notify them that they were not complying with Californian privacy law, which requires them to conspicuously post a privacy policy. The companies were required to comply within 30 days of receiving the letter by posting a privacy policy that informs users of what personally identifiable information is being collected about them and how such information will be used. Failure to comply would cost companies up to US$2,500 each time a non-compliant app is downloaded.

The warnings issued by the AG follow an agreement announced in February 2012 committing the leading mobile apps platform providers - Amazon, Apply, Google, Hewlett-Packard, Microsoft and Research in Motion - to a statement of principles (California Principles) designed to promote transparency in privacy practices and facilitate compliance with privacy laws in the mobile device environment, bringing the industry into line with California law (ie requiring mobile apps that collect personal information to conspicuously post a privacy policy). Briefly, the California Principles are:

  1. Where required by applicable law, apps collecting personal information must conspicuously post a privacy policy or statement that describes how the information is collected, used and shared.
  2. Provide a data field when apps are submitted by developers to supply a hyperlink to or the actual text of their privacy policy. The hyperlink or text should be made accessible from the mobile application store.
  3. Implement a means for app users to the platform apps that do not comply with applicable terms of service and/or laws.
  4. Implement a process for responding to reported instances of non-compliance.
  5. Continually work with the AG to develop best practice for mobile device privacy in general and develop model mobile device privacy policies in particular.

In June 2012, Facebook also agreed to be bound by the California Principles and signed the agreement. As a result, Facebook recently sent email alerts to its users (including those in Australia) notifying them of proposed updates to its data use policy. Interestingly, the email encourages users to review the changes proposed by Facebook and provide feedback by 28 November 2012, before the changes are finalised.

Although the California Principles and letters of warning issued by the AG formally only apply to apps made available in California, they are likely to set a benchmark for privacy practices across many countries (including Australia), given that most apps, regardless of the country in which they are developed, are likely to be made available in the US. Therefore, in addition to complying with relevant Australian privacy laws, we urge Australian businesses to follow best practice by voluntarily adopting the California Principles and using these as a framework for building privacy into the design of their mobile sites and apps (ie'privacy by design').

What action should Australian businesses take now?

Given the increased focus on privacy in the mobile devices environment internationally, we recommend that Australian businesses review and update their privacy policies and processes to ensure that they adequately cover personal information collected through mobile device apps and mobile sites.

To avoid potential liability, Australian businesses should:

  • Ensure their app and mobile site developers are aware of the legal obligations to protect privacy
  • Ensure all apps and mobile sites contain a functional link to the privacy policy/statement of the business in a conspicuous place
  • Provide a summary of the mandatory information to be provided to users under Australian privacy law at points where personal information is collected
  • Ensure the privacy policy/statement identifies how personal information is collected, reasons/purposes for collection and how such information will be used and shared in a manner that can be easily understood by users
  • Put in place adequate procedures for bringing the privacy policy (and any subsequent changes to it) to the attention of users before they enter the mobile site or download the app and obtain their consent regarding the use and disclosure of their personal information.

Please do not hesitate to contact us if we can assist with the review/audit of your current privacy practices and policies relating to your mobile sites and apps.

© DLA Piper

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.


DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to www.dlapiper.com

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

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

Authors
 
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
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (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 www.mondaq.com

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 Mondaq.com’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.

Disclaimer

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.

Registration

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 unsubscribe@mondaq.com 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.

Cookies

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.

Links

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.

Mail-A-Friend

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.

Security

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 webmaster@mondaq.com.

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 EditorialAdvisor@mondaq.com.

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 enquiries@mondaq.com.

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