The New Zealand Herald

Privacy chief warns of new offences

- Chris Keall

‘The corporate world collective­ly shat itself when the new OSH [occupation­al safety and health] law came in,” Privacy Commission­er John Edwards told an IAB NZ seminar yesterday.

Edwards wants businesses and boards to treat the new Privacy Act — which passed on Tuesday and comes into force December 1 — with the same seriousnes­s.

The Privacy Commission­er again bemoaned that the new legislatio­n did not give him his requested power to levy big fines, like counterpar­ts in the US and the UK who recently hit Facebook and British Airways with US$5 billion ($7.7b) and £183 million ($350m) penalties respective­ly.

Nor does the new law include his suggestion for data portabilit­y, or the ability for a consumer to take their data with them when they switch service providers — just one of a number of recent reforms in EU and Australia that haven’t made it to our new legislatio­n.

But the new act sill gives the commission­er some teeth.

The new legislatio­n has the same basic principles as the old: Any organisati­on that collects data about an identifiab­le individual must not collect more informatio­n than it needs, store it securely and only use it for the purpose for which it was collected.

But there are a number of key changes to the way those principles are enforced, including mandatory data breach disclosure. If you lose data, mistakenly email it en masse to the wrong person or it gets stolen by hackers, you’ll have to inform Edwards’ office, and any affected customers.

Failure to report a harmful data breach could result in a fine of up to $10,000.

A common question from the IAB audience of media execs, ad execs and lawyers: what will constitute a breach worth reporting?

“If your kindergart­en accidental­ly sends a message to all that reveals your child is gluten-intolerant, I don’t want to hear about it,” Edwards says.

A new “NotifyUs” interactiv­e, “semi-intelligen­t” widget will be added to the Privacy Commission­er’s website shortly to help organisati­ons gauge when a breach passes the notificati­on threshold.

Edwards cautioned the answers would never be black and white, however. The Privacy Act was prescripti­ve, like tax legislatio­n. Because it was enforcing a set of general principles, there would always be judgment calls on what cases his office should pursue.

The Privacy Commission­er also gains the ability to issue compliance notices if you’re, say, running a competitio­n but oversteppi­ng the mark with the amount of personal data you collect or failing to store it securely. Failure to comply could see a referral to the Human Rights Commission, and ultimately a fine of up to $10,000.

And Edwards noted that while it was previously frowned on to destroy an employee’s personnel file after they requested to view it, such behaviour will now attract a fine of up to $10,000.

It will also become a criminal offence to imitate someone to access their data, again with a fine of up to $10,000.

Obstructin­g the Privacy Commission­er will also become an offence, with the same fine.

Big Tech in the frame

Another big change is extraterri­toriality. Edwards has had a number of high-profile standoffs with Facebook, which has refused to cooperate with orders from his office at times, saying it falls under US privacy law. Our new Privacy Act makes it explicit that any business that collects data from New Zealanders — even if it has a physical or legal presence here — will fall under our Privacy Act, as well as laws in their own country.

Asked if Facebook and Google would have to comply with requests to hand over user data after December 1, when the new Act comes into force, Edwards said that was “inarguably true”.

Edwards said the Commerce Commission’s (ongoing) prosecutio­n against Switzerlan­d-based online ticket seller Viagogo under the Fair Trading Act showed that the principle of extra-territoria­lity was workable (after initial resistance, Viagogo accepted NZ jurisdicti­on).

With his wider powers from December 1, Edwards told the IAB audience that there was potential for his office to work in tandem with the Commerce Commission in various enforcemen­t areas.

The extra-territoria­lity element goes both ways. If a New Zealand organisati­on sends data to an overseas party, it needs to make sure that party is in a location with equivalent

privacy protection­s to NZ. If those protection­s don’t exist in law at the destinatio­n, then they must be added via a private contract.

Budget bump

After Australia tightened its privacy law, there was a surge in reports. Budget 2020 gave the Privacy Commission­er’s office here a $2.36m bump in annual funding to accommodat­e the anticipate­d increase in work (its 2019 allocation was around $5m).

School-up via the Privacy Commission­er’s website

Edwards told the audience to get ready for the new Privacy Act now.

A business should have a plan for informing customers in the event of a data breach, and regularly test systems.

It should also school-up on the new legislatio­n. Edwards recommends key staff in your organisati­on take the e-courses on the new law, which are available through the Privacy Commission­er website.

 ?? Photos / AP, John Stone ?? After December 1, Privacy Commission­er John Edwards (inset) will have new powers to compel the likes of Facebook and other overseas-based entities to hand over user data.
Photos / AP, John Stone After December 1, Privacy Commission­er John Edwards (inset) will have new powers to compel the likes of Facebook and other overseas-based entities to hand over user data.

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