Australia: Privacy - it is the business of everyone

Last Updated: 15 June 2018
Article by Michael Phillips

Even if you have no interest in privacy law, you would need to be living on a planet in a galaxy far, far away not to be aware of the GDPR.

GDPR

The GDPR (General Data Protection Regulation), came into operation on 25 May 2018. During the weeks leading up to that date, many of us received a slew of emails informing us that the sender has updated its privacy policy or online terms and conditions of business.

Whilst the GDPR is a creature of the European Council and Parliament and, as such, must be complied with across all 28 member states, many Australian businesses have been scrambling to understand whether and, if so, to what extent the GDPR applies to them.

FOREIGN APPLICATION

As a "foreign" law why should the GDPR concern an Australian business?

Like many US laws (including, the Foreign Corrupt Practices Act), the GDPR also applies outside its jurisdiction, in this case, the EU and so Australian businesses--- even those that have no establishment in the EU---may be obliged to comply with certain parts of the Regulation.

As regards non-EU based businesses, the GDPR extends to such businesses that process personal data of EU data subjects, where the processing activities are related to (a) offering goods or services to EU subjects (even where no payment is made); or (b) monitoring the behaviours of EU subjects.

Key to the application of the GDPR to Australian businesses without an establishment in the EU are the concepts of data processing, offering goods or services to EU subjects and monitoring the behaviours of EU subjects.

DATA PROCESSING

Data processing is a widely defined term, which includes any operation which is performed on personal data, such as the collection, recording, organisation, storage, adaptation, alteration, retrieval, consultation, use, disclosure by transmission, of personal information.

It would be a truly unique Australian enterprise, which receives (as part of its business) personal information of EU subjects, that could legitimately contend that it is not a data processor.

OFFERING GOODS OR SERVICES TO EU SUBJECTS

The GDPR provides some limited guidance as to whether a business offers goods or services to EU subjects. In short, it states that one should consider whether it is "...apparent that the business envisages offering goods or services to data subjects..." in one or more EU member states.

The mere fact that EU subjects have access to a business' website in the EU, or to an email address or of other contact details, is insufficient to ascertain such intention.

Examples of where a non EU based business will be regarded as offering goods or services to EU subjects would include:

  • an Australian business whose website targets customers, for example by enabling them to order or place an order for services in a European language (other than English) or by enabling payment in Euros;
  • an Australian website whose website mentions customers or users in the EU;

MONITORING THE BEHAVIOURS OF EU SUBJECTS

Monitoring behaviour in this context would arise where, for example, the business tracks individuals in the EU on the internet and uses data processing techniques to profile individuals, to analyse and predict personal preferences or behaviours etc.
If, as a result of the above, a non EU based business is subject to the GDPR, it is necessary to determine which provisions apply to the business.

The good news is that if you comply with the Australian privacy laws and principles, you are likely (at least on the face of it) to be compliant with many of the GDPR requirements. But there are obligations within the GDPR that have no similar counterpart in the Australian legislation and, even where there are similar provisions, some of the GDPR provisions are more onerous than their counterpart provisions in our law.

WHAT SHOULD AUSTRALIAN BUSINESSES DO?

Stating the obvious, it is important that Australian businesses---if they have not already done so--- ensure that they are fully compliant with the Australian Privacy Principles and the Privacy Act. Whether or not the GDPR is applicable to your business, whilst an important consideration, should not detract from ensuring compliance with Australian law.

But compliance with Australian law is not limited to having in place a compliant privacy policy and suitable online terms and conditions of business---it is much more than that.

Compliance includes having appropriate systems, protocols, technical and organisational measures in place to ensure or to at least facilitate the proper collection of personal data and the protection of such data against unauthorised or unlawful access, disclosure, loss or processing. It is during a consideration of these issues that Australian businesses should also consider and then determine what aspects of the GDPR apply to them. Only then will businesses be in a position to know whether they actually have in place systems and processes that will meaningfully assist them to comply with applicable Australian privacy law and the GDPR.

In our next issue, we will describe the various requirements that non EU based businesses, to which the GDPR applies, need to comply with.

For further information please contact:

Michael Phillips, Partner
Phone: +61 2 9233 5544
Email: MPP@SWAAB.COM.AU

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 Mondaq.com.

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

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
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 Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
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
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions