Australia: Risks of sending personal information overseas

Last Updated: 1 November 2015
Article by Ashley Cahif and Michael Palfrey

The Office of the Australian Information Commissioner (OAIC) recently issued Privacy agency resource No. 4: Sending personal information overseas to provide agencies some guidance on their obligations under the Australian Privacy Principles (APPs).

The difference between an overseas "use" or "disclosure" of personal information

The specific APPs that apply when personal information is sent overseas depend on whether there has been a "use" or "disclosure" of personal information.

Unfortunately, neither of these terms are defined in the Privacy Act 1988 (Cth). However, the guidance contained in the APP Guidelines draws a distinction based on the degree of control the APP entity retains over the information after it is provided to the overseas recipient.

Despite the guidance, the OAIC recognises that, in some instances, it can be difficult to determine whether the information is being "used" or whether it is being "disclosed". In such cases, the OAIC cautions against drawing too much of a distinction between the two, as an APP entity may still be held accountable for the mishandling of that information by the overseas recipient, regardless of which one it was.

Further, the OAIC notes that the steps an APP entity must take and its accountability may be similar regardless of whether the information is being used or disclosed.

How does the Privacy Act apply to disclosure of personal information overseas?

The key provisions of the Privacy Act that apply in these circumstances are APP 8 and s 16.

Principle 8.1 requires an APP entity to take reasonable steps to ensure the overseas recipient does not breach the APPs in relation to the personal information before disclosure. Where an entity discloses personal information to an overseas recipient, it is accountable for the overseas recipient's breach of the APPs (s 16C). However, both of these provisions are subject to exceptions.

What reasonable steps could an APP entity take to comply with APP 8.1?

The OAIC generally expects an APP entity to enter into an enforceable contractual arrangement with the overseas recipient, requiring the recipient to handle the personal information in line with the APPs (other than APP 1), along with taking steps to ensure compliance with those contractual arrangements.

However, where it is not reasonable to enter into an enforceable contractual arrangement, the OAIC expects the APP entity to consider what other steps might satisfy APP 8.1 and to minimise the risk that the personal information will be mishandled by the overseas recipient.

Even if you take "reasonable steps", can you still be held accountable?

Yes. The OAIC states that an APP entity may be liable for the acts or practices of the overseas recipient even when:

  • the entity has taken reasonable steps under APP 8.1 and the overseas recipient subsequently does an act or practice that would breach the APPs
  • the overseas recipient discloses the individual's personal information to a subcontractor and the subcontractor breaches the APPs, or
  • the overseas recipient accidentally breaches the APPs.

However, the OAIC will consider the reasonable steps taken by the entity to comply with APP 8.1 when resolving the matter.

How does the Privacy Act apply to uses of personal information overseas?

If an APP entity retains enough control over the information, it may be considered to be "using" that information. For example, in the case of an overseas cloud service provider, where the information is provided for the limited purpose of performing the services of storing and accessing (for the entity) personal information, there is a binding contract between the parties that:

  • limits the provider's handling of the information to these purposes
  • requires any subcontractors to agree to the same obligations, and
  • gives the entity effective control over how the personal information is handled by the provider.

In such a case, an APP entity may still be held accountable for the overseas recipient's mishandling of the information, as it is considered to still hold the information even though the information is physically located overseas. For example, the entity:

  • may breach APP 6 (requiring an entity to only use or disclose personal information for the primary purpose for which it was collected), if there is an unauthorised use or disclosure of the information
  • may breach APP 11.1 if it has not taken reasonable steps to ensure the security of the information in the overseas recipient's possession, and
  • must still comply with APPs 12 and 13 (requirements of access and correction of personal information), even though the information is in the overseas recipient's possession.

What this means for agencies

The applicability of the Privacy Act to overseas service providers is a complicated area. While there is still a long way to go to provide certainty, the guidance by the OAIC is welcome and indicates that it is willing to grapple with the complexities of the problems.

We will continue to keep you informed of developments in this area.

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.

Ashley Cahif
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”

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.