N and Law Firm [2011] AICmrCN 8 (22 December 2011): Privacy Commissioner investigation regarding NPP 1.2 and 10

March 14, 2012 |

In N and Law Firm [2011] AICmrCN 8 the Privacy Commissioner considered the operation of NPP 1.2, that an organisation must collect personal information only by lawful and fair means and not in an unreasonably intrusive way, and NPP 10.1, requring an organisation not to collect sensitive information about an individual unless one or more of the exceptions at NPP 10.1 applies of which NPP 10.1(e) allows an organisation to collect sensitive information about an individual if the collection is necessary for the establishment, exercise or defence of a legal or equitable claim.


The complainant alleged that a law firm interfered  by improperly collecting personal information, including their health information, by using covert film surveillance. This information was subsequently disclosed during court proceedings. The law firm was acting for its client, an insurer, when it collected the complainant’s personal information.


While the Commissioner  interprets ‘fair’ in the context of NPP 1.2 as to mean ‘without intimidation or deception’ that usually precludes collecting personal information covertly he found that the law firm’s collection of personal information was by fair means and not in an unreasonably intrusive way as it was part of defending a claim where the law firm and insurer suspected that the individual may have misrepresented a claim or the extent of injuries. On that basis the video collected health information about the complainant therefore NPP 10.1 applied.  The Commissioner found that the collection was necessary for the defence of a legal claim and therefore the law firm could rely on 10.1(e).

The Commissioner declined to investigate the complaint under section 41(1)(a) of the Privacy Act, on the basis that the actions of the law firm did not constitute an interference with the complainant’s privacy, as defined in the Act.





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