Otago Daily Times

Pri­vacy law re­freshed to re­flect the times

- mike.houla­han@odt.co.nz

PRI­VACY Com­mis­sioner John Ed­wards was in our patch this week, brief­ing in­sti­tu­tions and in­di­vid­u­als on far­reach­ing law changes about to take ef­fect in his patch.

In June this year, fol­low­ing con­sid­er­able de­bate,

Par­lia­ment passed a new Pri­vacy Act . . . not that many peo­ple no­ticed, as head­lines at the time were dom­i­nated by the video of Dunedin MP David Clark which brought the phrase ‘‘throw­ing un­der the bus’’ into widespread use.

Pri­vacy has vexed our politi­cians since the 1980s, when then jus­tice min­is­ter Sir Geoffrey Palmer tried but failed to have a pri­vacy right in­cluded in the New Zealand Bill of

Rights Act.

The need to pro­tect pri­vate in­for­ma­tion still ex­isted how­ever, and in 1993 the then

Na­tional­led govern­ment passed the Pri­vacy Act, as was.

While a no­table and note­wor­thy law change in its day, it soon be­came ap­par­ent that the freshly created po­si­tion of pri­vacy com­mis­sioner re­quired greater teeth if it were to achieve the stated in­ten­tion of en­sur­ing peo­ple’s con­fi­den­tial in­for­ma­tion re­mained just that.

The other prob­lem with the 1993 Act was how it aged . . . 1993 was 11 years be­fore the com­pany which even­tu­ally be­came Face­book was launched, and 14 years be­fore Ap­ple re­leased its first iPhone and in­fin­itely ex­panded peo­ple’s abil­ity to in­trude on peo­ple’s pri­vacy if they were so minded.

New Zealand’s politi­cians started to de­bate the Act in 1991, just months af­ter Tim Bern­er­sLee had created the first in­ter­net browser, an in­ven­tion which may have sparked more pri­vacy is­sues than any other, but which MPs were barely cog­nisant of.

How­ever, as then In­ver­cargill MP Rob Munro said in the sec­ond read­ing de­bate, ‘‘Peo­ple say that in­for­ma­tion should be pri­vate and that ter­ri­ble things are be­ing done to us all by com­put­ers’’ — and so it proved.

Fast for­ward to this year, and Dunedin South MP Clare Cur­ran re­minded the House tech­nol­ogy had rev­o­lu­tionised the way peo­ple dis­closed, shared, stored, and re­leased in­for­ma­tion.

‘‘The dig­i­tal rev­o­lu­tion that has oc­curred, much has changed, but the pro­tec­tion of peo­ple’s pri­vacy has not been mod­ernised, has not had a value put on it, and that is why this is so im­por­tant.’’

To give just one of Ms Cur­ran’s many ex­am­ples, ar­ti­fi­cial in­tel­li­gence or al­go­rithms are now mak­ing de­ci­sions with peo­ple’s pri­vate data, a con­cept which was sci­ence fic­tion in

1993 but busi­ness as usual to­day.

Given the pace tech­nol­ogy moves at com­pared with Par­lia­ment — which took an ex­traor­di­nar­ily con­vo­luted eight years to pass the Pri­vacy Act 2020 — the new law will no doubt start to look quaint in the not too dis­tant fu­ture.

But for now it has at­tempted to ad­dress many of the ma­jor con­cerns about how the 1993 Act func­tioned.

Per­haps most sig­nif­i­cantly, a pri­vacy breach no­ti­fi­ca­tion sys­tem comes in to force: if a busi­ness or or­gan­i­sa­tion has an is­sue, it must tell the pri­vacy com­mis­sioner.

How­ever, the pri­vacy breach must be one which has caused or is likely to cause se­ri­ous harm, and that def­i­ni­tion will no doubt be the trig­ger for le­gal action in the fu­ture.

The com­mis­sioner now has ex­tra pow­ers, which in­clude the abil­ity to is­sue a com­pli­ance no­tice which or­ders ad­her­ence to the Pri­vacy Act, and the power to com­pel or­gan­i­sa­tions to re­lease in­for­ma­tion held about an in­di­vid­ual — pre­vi­ously the com­mis­sioner could only me­di­ate and rec­om­mend.

Pro­tec­tion of the in­for­ma­tion of young peo­ple has been strength­ened, as has the reach of the Act. Over­seas busi­nesses or or­gan­i­sa­tions which ‘‘carry on busi­ness’’ in this coun­try will be sub­ject to it even if they are not based here — Google, Twitter, Face­book, they are look­ing at you.

No doubt the ef­fec­tive­ness of that pro­vi­sion will be tested as well, but the over­all in­ten­tion of the Act is clearly to ad­dress ar­eas where the pre­vi­ous law was con­spic­u­ously in­ad­e­quate.

Cru­cial now will be how ro­bust the new law, which comes into ef­fect on De­cem­ber 1, is against the march of time and in­no­va­tion, forces which bow to no Act of Par­lia­ment.

A lo­cal win

Dunedin Gen­er­a­tion Zero leader Adam Currie has had a vic­tory at the Ad­ver­tis­ing Stan­dards Au­thor­ity, which has up­held his com­plaint that a Na­tional Party Face­book ad­ver­tise­ment about the Green Party wealth tax pro­posal was mis­lead­ing.

The com­plaint is con­sid­ered set­tled as the ad is no longer up, but Na­tional might yet ap­peal the au­thor­ity’s find­ings, as it has with other com­plaints laid against the party.

Dates, places

So, you might be won­der­ing where Par­lia­ment has gone, see­ing as we had the elec­tion and all.

The Com­mis­sion Open­ing of Par­lia­ment is next Wed­nes­day, Novem­ber 25, and the of­fi­cial State Open­ing of Par­lia­ment is the fol­low­ing day.

The Par­lia­men­tary sit­ting pro­gramme re­leased in Fe­bru­ary no longer ap­plies, due to the long­stand­ing prin­ci­ple that the de­ci­sions of a pre­vi­ous Par­lia­ment do not bind a new one.

The new, yet to be con­sti­tuted busi­ness com­mit­tee has to rec­om­mend a new sit­ting pro­gramme, and un­til that hap­pens the House will meet on Tues­days, Wed­nes­days and Thurs­days every week.

Par­lia­ment was in­tended to keep meet­ing un­til De­cem­ber 17 but ex­pect that to be changed to the pre­vi­ous week

. . . al­though in this un­pre­dictable year, any­thing could still hap­pen.

New role

Te Tai Tonga MP Rino Tirikatene, along with North­land MP Wil­low­Jean Prime, were voted in as cochair­man and co­chair­woman of Labour’s Maori cau­cus on Tues­day.

 ?? PHOTO: SUP­PLIED ?? New pow­ers . . . Pri­vacy Com­mis­sioner John Ed­wards
PHOTO: SUP­PLIED New pow­ers . . . Pri­vacy Com­mis­sioner John Ed­wards
 ??  ?? Rino Tirikatene
Rino Tirikatene
 ??  ?? Clare Cur­ran
Clare Cur­ran
 ??  ??

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