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.
In our last post, without mentioning milkshakes, we talked about how central consent has become in the regulation of privacy and how putting so much weight on individuals’ choices can be problematic.
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.