Government’s response to Digital Platform Inquiry brings a direct right of action for an interference with privacy one step closer but puts off yet again a statutory tort for interference with privacy to another review

December 12, 2019

Today the Federal Government released its response to a the ACCC Digital Platforms Inquiry.

In relation to the recommendations relating to improving privacy protections it has been cautiously supportive, with emphasis on caution.  The positive outcome is that it supports giving individuals a direct right of action in court for interferences with privacy.

The overall response relevantly states Read the rest of this entry »

The ACT is having an annus horribilis on cyber security

December 2, 2019

The Australian National University announced earlier this year that it had been the victim of a cyber attack, for the second time in a year. Now there is an announcement that in 2018 there were two successful cyber attacks. The first breach involved the access to the ACT Government Directory on 23 November by a brute force attack.

Read the rest of this entry »

Call to reform Privacy Act because of data haul by Google and others

November 11, 2019

Even after writing about privacy for a decade and more, it still never ceases to amaze me that media write in breathless tones about the problem with organisations using and misusing data and personal information as if it was some form of revelation.  The only thing that has changed has been the great efficiency in the misuse.  The latest offering is the Australian’s piece Giants’ data haul sparks call to reform privacy act which is a bit of a spruik dressed up as an article for a conference to be hosted by the Consumer Policy Research Centre on 19 November 2019.

The chief executive is calling for “urgent reform of the Privacy Act” to better protect consumers.  She also wants a Consumer Data Right.  The call to reform the Privacy Act is misconceived.  There is no point increasing the powers of Read the rest of this entry »

The Office of the Victorian Information Commissioner releases its Annual Report for 2018 – 19

October 22, 2019

The Office of the Victorian Information Commissioner (OVIC) has released its 2nd annual report.  The transition from separate privacy commissioner and Freedom of Information Commissioner offices to a combined office seems to be working.  It was inevitable after a similar approach has been taken at a Federal level and in Queensland and New South Wales.

The remit of OVIC is limited to public service agencies.  Enforcement action is limited with compliance notices being the most serious action that can be taken.  The Privacy and Data Protection Act makes the OVIC a gatekeeper in any action taken under the Act in VCAT.  That has been problematical.  As with the Federal Information Commissioner, much is made of the conciliations and finalising of complaints but little is published about the nature of the breaches and what remedial action is taken beyond a few case studies in the Annual Report.

The Information Commissioner, Seven Bluemmel, has proved to be a very active participant in the various privacy seminars throughout the year and has hosted seminars on a fairly regular basis.  Generally they are of Read the rest of this entry »

Senior constable of Queensland Police convicted and receives suspended sentence for releasing personal information of domestic violence victim to ex husband

October 15, 2019

The ABC, Guardian and Nine/Fairfax press reports on a Queensland Police Officer, Senior Constable Neil Punchard, who has been convicted and been sentenced to 2 months jail, wholly suspended for 18 months, for leaking personal information of a woman to her ex husband in 2016.  Punchard accessed information relating to the victim on 9 occasions, hence the 9 charges of Read the rest of this entry »

The Australian Information Commissioner releases a Guide to health privacy

October 12, 2019

The Australian Information Commissioner has recently released a Guide to Health Privacy.  At over 50 pages it is quite comprehensive.  It is less equivocal than previous guides published by the Information Commissioner.  That is not to say it does not descend into vague generality more than it should. The Commissioner’s guidelines have no force of law under the Privacy Act 1988.  That obvious fact has been stated by the Administrative Appeals Tribunal and the Federal Court.  As they are not regulations their use as a legal document is relatively limited.  They do however serve as a standard which the Information Commissioner expects agencies and organisations to follow in order to comply with the Privacy Act.

While some of the Commissioner’s previous and current guidelines are so vague, rubbery and equivocal as to be of little use that is not really the key regulatory issue.  The problem has always been the reluctance by the regulator in taking enforcement action.  That has been a 30 year problem. The powers available to the Commissioner have grown over the years.  That has not been matched by Read the rest of this entry »

Prince Harry sues the Sun and the Mirror alleging phone hacking

October 5, 2019

A few days ago the Duchess of Sussex commenced proceedings against the Mail on Sunday alleging misuse of private information, a breach of copyright and contravention of the General Data Protection Directive. Now Prince Harry has commenced proceedings against the Sun and the Daily Mirror in relation to the hacking of his phone.

The pleadings are not public so it is not possible to comment on the technical basis for the claim however it would appear to be also a misuse of personal information case, with the hacking of his phone being used as a basis for stories.  He is using the law firm Cliffords who brought many of the claims arising out of the practice of News of the World in hacking the phones of members of the public.  Those cases settled.  It should be born in mind that, as the Media Standards Trust reported in its 52 page report,  most of the victims of phone hacking were not famous or Read the rest of this entry »

Duchess of Sussex sues the Mail on Sunday for misuse of private information, breach of copyright and breach of the GDPR

October 2, 2019

It is widely reported (in the Guardian, the Australian, the Nine Fairfax Press, the ABC etc) that Meghan, Duchess of Sussex has commenced proceedings in the High Court for misuse of private information.  She has, as is often the case involving the use of private communications which find their way into the media’s hands, also alleged a breach of copyright.  Additionally a breach of the General Data Protection Regulation is another cause of action.

The basis for the claim is a private letter from Meghan to her estranged father. Parts of that letter was extracted in an article in February 2019.

The United Kingdom courts have been industrious in developing the equitable cause of action of misuse of private information in the context of considering the operation of Articles 8 and 10 of the Human Rights Act.  The development has proceeded to Read the rest of this entry »

Law firms are increasingly the target of data breaches

September 13, 2019

The Australian in Anxiety rising as law firms confirm cyber breaches reports on a survey conducted by the Australian Legal Practice Management Association and GlobalX that found almost 20 per cent of Australian law firms that responded had been victims of a cybersecurity breach. This figure is consistent with US findings, such as the Australian Bar Association 2017 Legal Technology Survey.

This is hardly news.  The American Bar released a report in January 2019 dealing with the threat to US law firms which also set out in a practical terms processes and systems which reduce a law firms exposure to a data security.  Australian law societies have come some way in doing something similar but not to the same extent. Unfortunately there seems to be a cultural problem with law firms resisting spending enough on IT security, spending what budgets they have badly and generally failing to develop and maintain decent privacy and data protection policies.  Training tends to be superficial and irregular.  Given the weakest part of any cyber defence is the humans manning the phones, responding to emails and operating the computers this is commonly a disaster waiting to happen.  Often the usual targets for phishing targets, junior administrative staff are ill prepared for an attack.

Law firms are particularly prone to phishing and hacking of email accounts.  Law firms, particularly those with a focus on commercial and property law, hold significant sums and bank details.  Law firms are also prone to ransomware.  In 2017 DLA Piper suffered a ransomware attack which forced it to shut down its world wide digital operations.

The other problem with law firms’ data security is the Read the rest of this entry »

Commonwealth Attorney General’s office involved in a privacy breach

September 2, 2019

Sometimes, in fact often times, reality provides better copy than fiction.  The Australian reports that the the office of Christian Porter, the Commonwealth Attorney General, has been involved in a privacy breach.  In sending an email regarding the religious discrimination bill the office revealed the email addresses of more than 100 recipients.  Many of the addressees are religious figures but the list also included a judge and lawyers.

While the Australian’s report Read the rest of this entry »