In this post from our ‘Privacy in focus’ blog series, we explore arguments for and against changes to the definition of personal information being considered by the review of the Privacy Act, and the implications of those changes.
One of the simplest but most far-reaching potential amendments to the Privacy Act is the replacement of a single word: replacing ‘about’ with ‘relates to’ in the definition of ‘personal information’.
Supporters of the change (such as the ACCC, the OAIC, and the Law Council of Australia) say it would clarify significant legal uncertainty, while also aligning Australia with the GDPR standard and maintaining consistency between the Privacy Act and the Consumer Data Right regime.
Those opposed (such as the Communications Alliance and the Australian Industry Group) warn that the change may unnecessarily broaden the scope of the Act, potentially imposing substantial costs on industry without any clear benefit to consumers.
To understand why, we’ll dig into the origins of the definition and the present uncertainty regarding its application.
Precision is important
The definition of personal information sets the scope of the Privacy Act. All the rights and obligations in the Act rely on this definition. All the obligations that organisations have to handle personal information responsibly rely on this definition. All the rights that individuals have to control how their personal information is used rely on this definition. Personal information is the very base on which privacy regulation rests.
Any uncertainty in such an important definition can result in significant costs for both individuals and organisations. At best, uncertainty can result in wasted compliance work governing and controlling data that need not be protected. At worst, it can mean severe violations of privacy for consumers when data breaches occur as a result of failure to apply controls to data that should have been protected. Examples of the former are frequent — even OAIC guidance encourages organisations to err on the side of caution in identifying data as personal information. Unfortunately, examples of the latter are even more commonplace — the disclosure of Myki travel data by Public Transport Victoria, the publication of MBS/PBS data by the Federal Department of Health, and Flight Centre’s release of customer data for a hackathon are all recent examples of organisations releasing data subject to inadequate controls in the belief that it did not amount to personal information.
These uncertain times
According to the OAIC, the ACCC, and many others, there is substantial uncertainty as to the scope of ‘personal information’, particularly as it relates to metadata such as IP addresses and other technical information. That uncertainty was partially created, and certainly enhanced, by the decision of the Administrative Appeal Tribunal in the Grubb case, which was upheld on appeal in the Federal Court.
In the Grubb case, the Tribunal found that certain telecommunications metadata was not personal information because it was really ‘about’ the way data flows through Telstra’s network in order to deliver a call or message, rather than about Mr Grubb himself.
The ruling came as a surprise to many. The orthodoxy up until that point had been that the word ‘about’ played a minimal role in the definition of personal information, and that the relevant test was simply whether the information is connected or related to an individual in a way that reveals or conveys something about them, even where the information may be several steps removed from the individual.
Today, it’s still unclear how significant a role ‘about’ should play in the definition. Could one argue, for example, that location data from a mobile phone is information about the phone, not its owner? Or that web browsing history is information about data flows and connections between computers, rather than about the individual at the keyboard?
OAIC guidance is some help, but it’s not legally binding. In the absence of further consideration by the courts, which is unlikely to happen any time soon, the matter remains unsettled. Organisations are without a clear answer as to whether (or in what circumstances) technical data should be treated as personal, forcing them to roll the dice in an area that should be precisely defined. Individuals are put in the equally uncertain position of not knowing what information will be protected, and how far to trust organisations who may be trying to do the right thing.
Relating to uncertainty
Those in favour of reform want to resolve this uncertainty by replacing ‘about’ with ‘relates to’. The effect would be to sidestep the Grubb judgement and lock in a broad understanding of what personal information entails, so that the definition covers (and the Privacy Act protects) all information that reveals or conveys something about an individual, including device or technical data that may be generated at a remove.
Those who prefer the status quo take the view the present level of uncertainty is manageable, and that revising the definition to something new and untested in Australia may lead to more confusion rather than less. Additionally, there is concern that ‘relates to’ may represent a broader test, and that the change could mean a significant expansion of the scope of the Act into technical and operational data sets.
What we think
By drawing attention to ‘about’ as a separate test, the Grubb case has led to an unfortunate focus on how information is generated and its proximity to an individual, when the key concern of privacy should always be what is revealed or conveyed about a person. In our view, replacing ‘about’ with ‘relates to’ better focuses consideration on whether an identifiable individual may be affected.
Industry concerns about expanding the scope of the Act are reasonable, particularly in the telco space, though we anticipate this to be modest and manageable as the scope of personal information will always remain bounded by the primary requirement that personal information be linked back to an identifiable individual. Further, we anticipate that any additional compliance costs will be offset by a clearer test and better alignment with the Consumer Data Right and Telecommunications (Interception and Access) Act, both of which use ‘relates to’ in defining personal information.
Finally and significantly for any businesses operating outside of Australia, amending ‘about’ to ‘relates to’ would align the Privacy Act more closely with GDPR. Aligning with GDPR will be something of a recurring theme in any discussions about the Privacy Act review. This is for two reasons:
- GDPR is an attractive standard. GDPR has come to represent the de-facto global standard with which many Australian and most international enterprises already comply. It’s far from perfect, and there are plenty of adaptations we might want to make for an Australian environment, but generally aligning to that standard could achieve a high level of privacy protection while minimising additional compliance costs for business.
- Alignment might lead to ‘adequacy’. The GDPR imposes fewer requirements on data transfers to jurisdictions that the EU determine to have ‘adequate’ privacy laws. A determination of adequacy would substantially lower transaction and compliance costs for Australian companies doing business with the EU.
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In our next edition of the Privacy in Focus series, we’ll take a look at consent and the role it might play in a revised Privacy Act. Will Australia double down on privacy self-management, or join the global trend towards greater organisational accountability?
Footnote:  Because of the way that privacy complaints work, disputes about the Privacy Act very rarely make it before the courts — a fact we’ll dig into more when we cover the proposal for a direct right of action under the Act.