Australia: Privacy Down Under – How Do Antipodean Privacy Regimes Stack Up Against The GDPR?

This article is the second instalment in a series of Clyde & Co publications analysing the evolution of New Zealand's privacy landscape. While our first commentary discussed the New Zealand Justice Committee's recommendation that a notifiable data breach scheme be implemented in New Zealand, this article: (1) gives a high level summary of recent privacy law developments in Australia and New Zealand, (2) outlines the framework for New Zealand's privacy laws and finally (3) tables a comparison of the two countries' regimes with the GDPR.

Recent antipodean privacy law developments

The implementation of the General Data Protection Regulation (GDPR) in early 2018 has catalysed privacy and data law reform south of the equator. As we discussed in our first article, New Zealand's new Privacy Bill updates the country's 90s vintage privacy legislation. Australia's notifiable data breaches scheme is now a little over a year old and further privacy changes are slated for July 1 with the introduction of the Consumer Data Right, an additional consumer right which is intended to provide individuals with greater control over their data when transferring their accounts between different banking, energy and telecommunications services providers. The Australian Privacy Act itself is not immune from further shake ups, with suggestions that financial penalties under the Privacy Act be significantly increased. The current maximum penalty under the Privacy Act of AUD 2.1 million is minimal in comparison with the €20 million capable of being imposed under the GDPR.

These Australian and New Zealand privacy changes are reflective of a global movement towards stricter privacy compliance frameworks, with regimes focussing on businesses securely storing personal information and promptly notifying regulators and affected individuals when a data breach occurs. The movement towards stricter compliance regimes globally and publicity surrounding recent data breaches means many more businesses now have a general understanding of their obligations with regards to customers' personal information.

New Zealand's privacy law framework

From its inception, the New Zealand Privacy Bill (the Bill) was designed to both modernise New Zealand's privacy legislation and ensure the country moved towards the implementation of a stricter privacy compliance regime, in line with global trends.

Top three updates to the Bill

  1. it retains the 12 Information Privacy Principles which form the core of current legislation;
  2. it introduces a new principle to provide additional protection for personal information disclosed to entities based outside New Zealand, such as when a New Zealand business provides customer data to email direct marketing businesses like Mail Chimp, currently headquartered in Atlanta, the United States; and
  3. it introduces a notifiable data breach scheme.

As mentioned, the New Zealand Privacy Bill increases privacy compliance requirements for New Zealand businesses and foreign entities doing business in New Zealand. Businesses currently operating in New Zealand or with plans to enter the market should have a holistic understanding of current laws and proposed changes. You should seek advice if your business holds particularly sensitive customer or client data such as health information, financial information or identification details or if your business holds a large volume of data generally.

A snapshot comparison of Australia, New Zealand and the European Union's privacy regimes

In light of the evolving New Zealand privacy environment, we have compiled the following table to assist you to understand the key differences between each jurisdiction. If you are unsure of how the Privacy Bill might affect your business, we recommend you seek advice.

The following table is drafted with the assumption that New Zealand's Parliament will incorporate the amendments proposed by the Justice Committee into the final version of the Bill.

New Zealand Privacy Bill Australian Privacy Act European Union (EU) GDPR
Who regulates these laws? The Office of the Privacy Commissioner. The Office of the Australian Information Commissioner. The GDPR is supervised by individual European Union member states.
Who do these laws apply to? Agencies, being any public or private sector organisation. An exception exists for news media while gathering and reporting news. APP entities, being agencies or an organisation with an annual turnover of more than AUD 3 million, or which fall under the Privacy Act because of the type of services provided, such as health services. Data controllers, being any agency or body which determines the purposes and means of processing data; and

Data processors, which process data on behalf of the controller.
Do these laws apply outside the country or jurisdiction's borders? The Bill will apply to:

  • NZ agencies regardless of where the information is collected or held[1]; and
  • overseas agencies collecting and holding personal information during the course of carrying on business in New Zealand[2].
The Act applies to businesses:

  • incorporated in Australia; or
  • organisations or operators that carry on business in Australia and collect or hold personal information in Australia.

That is, organisations which have an 'Australian link'.

The GDPR applies to companies which:

  • are based within the European Economic Community (EEC);
  • are not based in the EEC but which offer goods or services to individuals based within the EU; or
  • are not based in the EU but which monitor individuals in the EU.
What rights do individuals have? The Bill includes an 'Individual participation principle', prescribing that individuals should have the right to:

  • obtain data relating to them from data controllers; and
  • to have their data erased, rectified, completed if it is not complete, or amended.
Businesses must amend, destroy or de-identify personal information held about an individual either upon request by the individual or when the information is no longer required for the purpose it was originally collected for.

In relation to their personal data, individuals based in the EU have the right to access their data, to have their data erased, ported to a third party, restrict the use of their data or to object to its use.

What amounts to a breach?
  • unauthorised or accidental access to, or disclosure, alteration, loss, or destruction of, the personal information; or
  • an action that prevents the agency from accessing the information on either a temporary or permanent basis.
  • unauthorised access to or disclosure of personal information; or
  • information lost in circumstances where unauthorised access or disclosure is likely to occur.
Under the GDPR, a personal data breach means a security breach leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed.
What data breaches must be reported? Notifiable privacy breaches must be reported.

A notifiable privacy breach is one where it is reasonable to believe that the breach has caused serious harm to the affected individual(s), or it is likely to do so.

Agencies must consider factors including:

  • actions taken by the agency to reduce harm;
  • the sensitivity of the personal information; and
  • the nature of the harm caused.
Eligible data breaches must be reported, being breaches which are 'likely to result in serious harm' to an affected individual.

Serious harm includes but is not limited to psychological, financial, reputational, emotional, or physical harm.
The GDPR distinguishes between when a supervisory authority must be notified and when affected individuals must be notified.

>A supervising authority must be notified unless the personal data breach is unlikely to result in 'a risk to the rights and freedoms' of natural persons.

Affected individuals must be notified where the breach is likely to result in a high risk to their rights and freedoms.

Reporting timeline Agencies must notify the Privacy Commissioner as soon as practicable after becoming aware that a notifiable privacy breach has occurred. APP entities have 30 days to carry out a reasonable and expeditious assessment. Once an organisation determines that the breach is notifiable, the entity must notify the OAIC and individuals as soon as practicable. Businesses must notify supervising authorities without undue delay and where feasible within 72 hours.

While there is no prescribed timeline for notifying individuals, the notification should be made without undue delay.
Maximum penalty NZD 10,000. AUD 2.1 million (this is currently under review). The higher of either:

  • €20 million; or
  • 4% of the organisation's total worldwide annual turnover of the preceding financial year.

How we can help?

Clyde & Co has the largest dedicated and rapidly expanding cyber incident response practice in Australia and New Zealand. Our experienced team have dealt with over 700 data breach and cyber related incidents in recent times, including a number of the largest and most complex incidents in Asia Pacific to date.

From pre-incident readiness, breach response, through to assistance with regulatory investigations and proceedings, as well as recoveries, we assist clients in Asia Pacific across the full cyber lifecycle.

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
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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