elevenM’s Tessa Loftus on parenting the internet generation and the opportunity for digital media platforms to improve the experiences of everyone who is growing up on the internet.
In our final post for Privacy Awareness Week (PAW), we share our five highlights and observations from the week.
1. A privacy win during PAW
The timing may have been coincidental, but we’ll take it. There was a notable win for privacy this week with the Senate Committee that reviewed the Government’s inter-agency data sharing law – the Data Availability and Transparency Bill – recommending the bill not be passed in its current form, noting a need for stronger privacy protections and security measures (among other things).
Our advocacy for greater attention to the privacy risks in the bill (as part of a collaborative submission with other privacy colleagues) was quoted in the Senate Committee’s report and in the news media this week.
2. Momentum building
We were energised to hear this week just how much focus and attention there is on privacy, particularly from a regulatory perspective. At a panel of regional privacy regulators hosted by the International Association of Privacy Professionals on Tuesday, we got insight into the breadth of activity currently underway.
At the Commonwealth level, clearly the focus is on the review of the Privacy Act. The States and Territories are also running various projects to bolster privacy protections, from the privacy officers project in Victoria, mandatory breach reporting in NSW and privacy champions network in Queensland, to the focus on managing privacy in complex cross-cultural contexts in the Northern Territory.
Overseas, New Zealand is looking at improvements within its public sector, the Philippines will be launching a privacy mark and Singapore is implementing its new data protection law.
Many of the regulators on Tuesday also expressed the view that it is time for everyday Australians to make privacy a priority and realise that every time we hand over our data, we’re not only making an individual decision but also contributing to the future fabric of our society.
3. Privacy spat!
What better way to draw attention to trust and transparency during PAW than a stoush between two technology platforms over privacy.
Signal and Facebook went at it after Signal used Facebook’s own advertising platform to create ads that exposed the categories Facebook uses to classify users. The ads appeared as placards and contained customised messages such as: “You got this ad because you’re a certified public accountant in an open relationship. This ad used your location to see you’re in South Atlanta. You’re into natural skin care and you’ve supported Cardi B since day one.”
Facebook labelled the move a stunt, while Signal claimed Facebook disabled its account as a response. Either way, fantastic timing for PAW.
4. Privacy is precious
Speaking of ads, our attention this week was drawn to New Zealand’s TV commercial for privacy, created to raise awareness of its new Privacy Act, which came into operation in December 2020. The ads feature the theme “Privacy is precious” and are at once simple to understand while being wonderfully evocative. Check it out here.
The Kiwis have a great track record of pumping out great videos to raise awareness – see the Air New Zealand air safety videos and New Zealand Government online safety ads. Perhaps it’s time to add “privacy advertisements” to the list of cross-Tasman rivalries, which already includes cricket, rugby and netball. Can Australian creatives take up the charge and create an even better pitch to help the Australian community prioritise privacy?
5. Hurray for privacy drinks
Finally, it was great to celebrate Privacy Awareness Week with an old-fashioned drink with friends and colleagues. elevenM hosted drinks at O Bar in Sydney on Wednesday night, and we were thrilled to be back together in person with so many of our valued friends, clients, partners, colleagues, and other fellow travelers in attendance.
It reminded us what a diverse and vibrant community we have and filled us with inspiration and optimism about the future, as we work together to solve some of the most complex issues of our time. Thanks to all who came, and we hope those that couldn’t will make it next time.
In this final post from our ‘Privacy in focus’ blog series we discuss changes we believe are necessary to enhance trust and confidence in the broader privacy landscape in Australia.
Thus far in the ‘Privacy in focus’ series, we have looked at the operation of the Privacy Act and its most fundamental elements: the definition of personal information, the operation of notice and consent, and organisational accountability. We have proposed changes that we believe will strengthen how privacy is managed.
In approaching our final post, we put ourselves in the shoes of the individual. What does the operation of the privacy regime look like to them? Are there gaps? Is there consistency in who is covered and who isn’t? Do they feel empowered to participate in the defence of their rights? In asking these questions, it became clear that there may be some blind-spots and loopholes undermining confidence in the broader system.
Time to close the gaps
A number of exemptions in the Privacy Act – while reasonable at the time of their inclusion – no longer appear valid given the way our economy and online environment functions. Most striking are the exemptions for small businesses and employee records.
Due to technology, small businesses today are capable of great scale, with many handling significant volumes of personal information. Small businesses account for 97% of all Australian businesses (by employee size) and at least a third of the value of the Australian economy. Excluding such a large chunk of the economy from privacy regulation not only places many individuals at risk of potential harm, it erodes trust in our privacy regime, is out of step with international standards and contributes to why we are inadequate under GDPR.
In saying this, many small businesses today already comply with overseas privacy regimes (that do not include a small business exemption) because they also service international customers. Removing the small business exemption may provide many such businesses with consistency and reduce friction in international transactions.
The changing times have also left employee records and political exemptions behind. Due to the convergence of digital experiences inside and outside the workplace, it’s likely many individuals have the same expectations of privacy from their employer as they do of businesses they deal with outside the workplace. The emergence of workplace surveillance technologies also further underscores the need for better protections for employee information.
On the political front, developments such as Cambridge Analytica, growing voter databases and unsolicited campaign messaging have clearly cast a shadow over the validity of exemptions for political parties.
As a final note, the Australian Community Attitudes to Privacy Survey 2020 found almost three-quarters of Australians feel exempt organisations “should be required to protect personal information in the same ways that government and larger businesses are required to”.
Two final strings to the bow
Earlier in the series, we made the case that consumers are not truly empowered to manage their own privacy – largely because the idea that we can make rational decisions about future informational harms, especially in increasingly complex digital ecosystems, is a deeply flawed premise.
This lack of empowerment is even more explicit when things go wrong. Firstly, many privacy wrongs are not covered by the Privacy Act at all. Absent a general ‘privacy tort’ or independent statutory cause of action, individuals lack the ability to take to court serious invasions of privacy that don’t involve the Privacy Act, such as such as unauthorised surveillance or infringements on the privacy of communications.
Even when an infringements is covered by the Act (ie. matters of data protection by organisations), individuals presently have no direct recourse. They must rely on privacy regulators – such as the Office of the Australian Information Commissioner – to act against the violating entity on their behalf. This makes a resource-strained regulator something of a gatekeeper.
It seems logical that a key part of empowering individuals to protect their privacy would be to give them the right to seek judicial redress when harmed. Tellingly, 78% of Australians believe that they should have the right to seek compensation in the courts for a breach of privacy. Indeed, the need for a statutory cause of action for invasions of privacy has been canvassed previously, including by the Australian Law Reform Commission (ARLC) and The Australian Competition and Consumer Commission’s Digital Platforms Inquiry.
There does need to be careful consideration of how a direct right of action is designed. Much has been written about the deep pockets required to approach the courts, and the counter argument that the courts could be overwhelmed by trivial privacy complaints, to say nothing of the fear of the business community in being dragged into ‘nuisance lawsuits’. Options such as a threshold test and procedural considerations have been contemplated in detail, including by the ARLC in its 2013 issues paper and by elevenM in our direct right of action research paper.
Introducing a direct right of action might also shift sentiment, drawing individuals to think more keenly about their own privacy. A direct right of action also amplifies the idea that privacy is of value in our society, particularly once individuals pursuing actions becomes visible. As argued by US lawyer Yosef Getachew in making the case for a right of action in the US, a direct right of action is “an extension of democratic participation, like petitioning government, writing members of Congress, and talking to state legislators.”
Towards a unified system
As we’ve worked our way through this blog series on the review of the Privacy Act, what has emerged clearly is that the legislation remains is no longer in-step with the modern digital environment, and that reform is necessary.
This includes changes at the level of definitions of terms like personal information. Equally important is understanding whether measures like consent and notice remain effective and durable as digital interactions become more complex. When we consider the roles of individuals and organisations, we also must ask: how do we strike the right balance of accountabilities? Should we reframe where the onus of responsibility sits?
In short, we seek to imagine a more unified system in which all parts – individuals, organisations, regulators and the regulations – work together to deliver a digital environment marked by consistently good privacy and high levels of trust. We’re confident many of these issues will be contemplated seriously by a revised Privacy Act, and hope this series has been a constructive and informative contribution.
Read all posts from the Privacy in focus series:
Privacy in focus: A new beginning
Privacy in focus: Who’s in the room?
Privacy in focus: What’s in a word?
Privacy in focus: The consent catch-22
Privacy in focus: A pub test for privacy
Privacy in focus: Towards a unified privacy regime
elevenM’s Tessa Loftus on the experience of technology solutions that are actually privacy intrusions in our everyday life.
Last week, I needed to take my daughter for an early morning urgent medical appointment in Rhodes. My initial delight at easily finding a park quickly turned to consternation when it seemed that the only option to pay for my parking — on a public street — was to download an app.
Despite being a privacy professional, I did as most people would do and downloaded the app, which immediately asked to access my motion and fitness activity (why?), and to send me push notifications. For the app to work, I was required to provide my full name, email, phone number, credit card details and access to my real time location data. This gave the options of once only, only while using the app, or, again oddly, always.
Further, where personal information must be provided to use public facilities or to access government services, there is no possibility of a valid ‘consent’ to data processing. I should not have to give up my information to sit on a public bench or park in a public space.
Needless to say, I deleted the app when I left my park. But how do I divorce myself entirely from this app? While deleting the app stops it accessing my location data, it is unlikely that it deletes my data from the database. So now I have to trust in perpetuity that the app developer is protecting my full name, email, phone number, credit card details and location data.
There are simply too many situations where unnecessary collection of information has been slipped into everyday life without people noticing. It is easy to see why a local council and frequent parkers would value the convenience of an app like this, which offers remote extensions of time and linking to a credit card for repeat payments. But what if I don’t want to share my profile with a company I don’t know (or haven’t had time to investigate), or I just want to remain anonymous? What if I am a person who is only thinking about getting where I’m going, and not about digital risk while I’m parking my car, which causes me to make a decision that later causes me harm?
We should all know by now that with innovation and digital convenience come new risks. And it should not be incumbent on consumers to navigate those new risks (especially when they’re under pressure), but rather to be able to trust the system knowing that the rules of participation for data collectors require that people and our social values are protected.
As organisations – both business and government – increasingly look to technology for solutions to the ‘everyday’ we need to ensure that they meet baseline protections. I feel entirely comfortable in buying the cheapest available car seat for my child, because I know that Australia has strong product safety laws and that someone with more expertise than myself has checked that we will be kept safe.
The Canada Bay council website indicates that app-area parking also offers regular parking meters. However this option wasn’t conspicuous to me – the parking sign said ‘phone ticket’, it was underneath a larger sign saying ‘app-name parking area’, and no parking meter was obvious in the vicinity.
In this instalment of our ‘Privacy in focus’ blog series, we look beyond consent and explore other ideas that could make privacy easier and more manageable.
This time, we’re into solution mode. How can we make privacy choices easier? How might we start moving away from consent as the touchstone? What might privacy law look like if it didn’t rely so heavily on individuals to monitor and control how their information is used?
Start where you are
It is likely that notice and consent will always be a critical piece of the privacy puzzle, so before we start talking about evolving our entire regulatory model, we should probably cover what might be done to improve our current approach.
Last time, we identified four related ways in which individual privacy choices get compromised:
- we don’t have enough time
- we don’t have enough expertise
- we behave irrationally
- we are manipulated by system designers.
So what can we do to address these shortcomings?
We can raise the bar — rule out reliance on consent in circumstances where individuals are rushed, do not understand or have not truly considered their options, or in truth do not have any options at all. Raising the bar would rule out a range of practices that are currently commonplace, such as seeking consent for broad and undefined future uses, or where there is a substantial imbalance of power between the parties (such as in an employment relationship). It would also rule out what is currently a very common practice of digital platforms — requiring consent to unrelated secondary uses of personal information (such as profiling, advertising and sale) as a condition of service or access to the platform.
We can demand better design — clearer, shorter and more intelligible privacy communications, perhaps even using standardised language and icons. Apple’s recently adopted privacy ‘nutrition labels’ for iPhone apps are a great example of what this can look like in practice, but we needn’t stop there — there is a whole field of study in legal information design and established practices and regulatory requirements from other industries (such as financial services product disclosures) which could be drawn on.
We can ban specific bad practices — manipulative and exploitative behaviours that should be prohibited. Australian Consumer Law goes some way to doing this already, for example by prohibiting misleading and deceptive conduct (as the ACCC’s recent victory against Google will attest). But we could go further, for example by following California in specifically prohibiting ‘dark patterns’ — language, visual design, unnecessary steps or other features intended to push users into agreeing to something they wouldn’t otherwise agree to. Another, related option is to require privacy protective default settings to prevent firms from leveraging the default effect to push users towards disclosing more than they would like.
Who should take responsibility for safety?
But even if we did all of the above (and we should), taking responsibility for our own privacy in a world that is built to track our every move is still an impossibly big ask. Instead of expecting individuals to make the right choices to protect themselves from harmful data practices, the Privacy Act should do more to keep people safe and ensure organisations do the right thing.
What would that look like in practice? Focusing on organisational accountability and harm prevention would mean treating privacy a bit more like product safety, or the safety of our built environment. In these contexts, regulatory design is less about how to enable consumer choice and more about identifying who is best equipped to take responsibility for the safety of a thing and how best to motivate that party to do so.
Without strict safety requirements on their products, manufacturers and builders may be incentivised to cut corners or take unnecessary risks. But for the reasons we’ve already discussed, it doesn’t make sense to look to consumers to establish or enforce these kinds of requirements.
Take the safety of a children’s toy, for example. What is more likely to yield the optimal outcome – having experts establish standards for safety and quality (eg: for non-toxic paints and plastics, part size, etc) which manufacturers must meet to access the Australian market, and against which products will be tested by a well-resourced regulator? Or leaving it to the market and having every individual, time-poor consumer assess safety for themselves at the time of purchase, based on their limited knowledge of the product’s inner workings?
Whenever we can identify practices that are dangerous or harmful, it is far more effective and efficient to centralise responsibility in the producer and establish strong, well-funded regulators to set and check safety standards. We don’t expect individual consumers to check for themselves whether the products they buy are safe to use, or whether a building is safe to enter.
Why should privacy be any different?
Just like with buildings or physical goods, we should be able to take a certain level of safety for granted with respect to our privacy. Where a collection, use or disclosure of personal information is clearly and universally harmful, the Privacy Act should prohibit it. It should not fall to the user to identify and avoid or mitigate that harm.
Privacy laws in other jurisdictions do this. Canada, for example, requires any handling of personal information to be ‘for purposes that a reasonable person would consider appropriate in the circumstances. In Europe under the GDPR, personal data must be processed ‘fairly’. Both requirements have the effect of prohibiting or restricting the most harmful uses of personal information.
However, under our current Privacy Act, we have no such protection. There’s nothing in the Privacy Act that would stop, for example, an organisation publishing personal information, including addresses and photos, to facilitate stalking and targeting of individuals (provided they collected the information for that purpose). Similarly, there’s nothing in the Privacy Act that would stop an organisation using personal information to identify and target vulnerable individuals with exploitative content (such as gambling advertising). The APPs do surprisingly little to prohibit unfair or unreasonable use and disclosure of personal information, even where it does not meet community expectations or may cause harm to individuals.
A pub test for privacy
It is past time that changed. We need a pub test for privacy. Or more formally, an overarching requirement that any collection, use or disclosure of personal information must be fair and reasonable in all the circumstances.
For organisations, the burden of this new requirement would be limited. Fairness and reasonableness are well established legal standards, and the kind of analysis required — taking into account the broader circumstances surrounding a practice such as community expectations and any potential for harm — is already routinely conducted in the course of a Privacy Impact Assessment (a standard process used in many organisations to identity and minimise the privacy impacts of projects). Fairness and reasonableness present a low bar, which the vast majority of businesses and business practices clear easily.
The ultimate goal
These changes are not revolutionary, and they might not get us to that world immediately, but they are an important step along the path, and similar measures have been effective in driving better practices in other jurisdictions.
The review of the Privacy Act is not only an opportunity to bring us back in line with international best practice, but also an opportunity to make privacy easier and more manageable for us all.
Read all posts from the Privacy in focus series:
Privacy in focus: A new beginning
Privacy in focus: Who’s in the room?
Privacy in focus: What’s in a word?
Privacy in focus: The consent catch-22
Privacy in focus: A pub test for privacy
 In it’s submission on the issues paper, the OAIC recommends amending the definition of consent to require ‘a clear affirmative act that is freely given, specific, current, unambiguous and informed’.
 These examples are drawn from the OAIC’s submission to the Privacy Act Review Issues Paper – see pages 84-88.
In celebration of Privacy Awareness Week we’re starting our new blog series “Future Privacy”, in which we’ll seek to understand and resolve some of the challenges many organisations face managing privacy in a time of exponential data growth. In particular, we’ll be looking into the role technology and automation can play.
In this first post of the series, we’ll start by reflecting on how privacy has developed as a discipline in Australia over the last 20 years, through the experiences of our privacy practice lead, Melanie Marks.
Perhaps surprisingly for a privacy professional, my career began in advertising. Working for an agency, I was spruiking credit cards (if the work of an ‘account coordinator’ can be called spruiking) while I finished my law degree. I took a course at ADMA where I learned about privacy in the context of direct marketing practices, including managing the quality of data held by the mailing house.
Privacy was a reasonably new concept for businesses and there were only a handful of people in Australia who would call themselves ‘privacy practitioners’. At this time, the Privacy Act had just been extended to apply to the private sector and there were two sets of privacy principles known as the ‘NPPs’ and the ‘IPPs’. Those early years of the new millennium also produced rapid advances in digitisation and opened the consumer app market with the rolling launches of Android, Facebook, YouTube, Twitter and iPhone, mere ripples in what would become a sea of data-driven practices requiring privacy management.
In 2008, the ALRC released its comprehensive report into the adequacy of Australia’s privacy laws, in which it took the position that ‘as a recognised human right, privacy protection generally should take precedence over a range of other countervailing interests, such as cost and convenience’. The review was an amazing product – three huge volumes of analysis, still referenced today. Despite this, it would take six years before most of recommendations (including the unified APPs) were enacted. Many of the report’s themes are back on the table in the current review of the Privacy Act.
In 2009, there were three management-level privacy roles advertised in Sydney, and I suspect that the number of purely privacy advisory roles were similarly few. By comparison, there are countless ads for roles with privacy accountabilities today, of which the best ones are at elevenM. 😊
My first role in privacy management was in eHealth where privacy was understood to be paramount to trust in the emerging digital system. Our privacy team was most aligned to a compliance function and like many of the client teams we see today, busy with bespoke privacy impact assessments (PIAs) as well as reviewing technical requirements, contributing to draft legislation, and addressing the concerns of diverse stakeholders. Although we were run off our feet (and in fact the organisation held very little personal information), in 2009 the idea of automation to undertake privacy operational tasks did not arise.
My next move, to a large retail bank, was characterised by transformation. We stared into the new concept of ‘digital trust’ which had currency overseas, to inform our privacy strategy. The team operated an internal consultancy, delivering PIAs, managing data breaches and dealing with myriad other emerging issues. As the bank rapidly pursued innovative customer and enterprise innovations, while seeking to remain compliant and engender trust, my team faced an unsurmountable volume of requests to size up and manage the privacy impacts.
It became clear to me that a scalable and automated PIA solution for the Australian market was needed, and I set out to find one. The best option I found (but did not pursue) was to outsource PIAs to one of the new privacy consultancies in the market. Our team continued to deliver against the growing needs of our internal customers. It was already evident that no amount of human capital would be enough to future-proof demand. It should be said that some of today’s market-dominant privacy solutions were already out there, but adoption was not commonplace.
In recent years, we have seen a significant blurring of the roles played by privacy, data governance and information security teams. Responsibilities have moved, morphed and evolved. For example, tasks which were previously the domain of data governance or were entirely neglected (such as inventories, mapping, data retention and maintenance) have drifted into the work of privacy teams. Incident management often sits between privacy and cyber teams with legal and other stakeholders. Vendor assessment has become a multidisciplinary process undertaken by security, privacy, data governance, compliance, procurement personnel and others. What we are seeing has validated our firm’s objective of delivering services which combine these disciplines. It has also highlighted the need for enterprise collaboration and risk management software.
Amongst most of our clients, we are also seeing that the tsunami of data that every organisation now holds is increasing demands for privacy expertise. The speed and scale in which all organisations can now view, collect, create, use and share data would not have been believed in the early 2000s. Factors behind this are the emergence of cloud-based services, the comparative reduction in the costs of data storage, the willingness of companies to outsource key functions and the seeming desire of organisations to analyse every piece of data that they have ever collected or might infer. We’ve also had significant tightening up of laws (think European and APAC changes, as well as mandatory PIAs for Commonwealth agencies and reporting of breaches). Operational privacy can no longer be managed using the same processes that teams used 20 years ago.
Today, there is no way that a person (or even 10 people) with a spreadsheet (or 100 spreadsheets) in any large enterprise can definitively map data flows or inventory an organisation’s data holdings, whilst risk assessing all material initiatives, responding to data breaches and data subject requests and inquiries. We have a scaling problem. And hence, transformation in privacy will be necessary for survival; in fact, the tipping point is here.
Yet, whilst today there are tools offered by hundreds of vendors for privacy assessment, consent management, data mapping, data subject requests, incident response and notification, scanning, mapping, discovery, de-identification and more, take-up in the Australian market has so far been patchy.
Every privacy professional, CIO, CISO and CDO needs to know about these tools. And every privacy leader should be thinking about how to implement the tools and hence, how to build their teams of the future. In my next blog I will be imagining a new way forward. What should organisations look for in a technology solution? Is it possible to buy the turn-key solution to end your privacy woes? And what skills will be needed in the privacy workforce of the future?