Peter A Clarke

The UK Information Commissioner’s Office (the ICO) produces excellent guides relating to UK and EU laws. They are much clearer, specific and, therefore, useful than the guidances produced by the Australian Information Commissioner.  Given the legislation and regulations in this area of the law is principles based having good guidances is critical.

The ICO has produces its Guide to the General Data Protection Regulation (GDPR).  A 171 page tome on all matters relating to compliance with the GDPR.  The GDPR is about to take effect in Europe, on 25 May 2018 to be precise.  It’s impact will range farther than the borders of the European Union.    Even Mark Zuckerberg in his much vaunted testimony to Congress in April said Facebook would, eventually, comply with the GDPR.

The GDPR differs from the Australian Privacy Principles.  It is much more comprehensive.  However that does not mean that they are not relevant for Australian practitioners.  Companies with a significant presence in the EU will need to be aware of the GDPR requirements.  At the local level Read the rest of this entry »

Today’s story in the Age of a video footage of Dane Swan, former AFL player, being circulated on line highlights the total inadequacy of Australia’s privacy protections.  Governments have been keen to criminalise the acts of distributing intimate videos and pictures on line without the consent of the subject of those images but have been totally unwilling to give individuals a civil right to take action of their own volition for such breaches.  In short, it comes down to the police having to carry the load totally when an individual may wish to also exercise their right.  Governments have been virtue signallers at best. Yes criminalise the conduct but provide proper privacy protection through a statutory tort of invasion of privacy.

The problem with the half measure that exists is Read the rest of this entry »

The Commonwealth Bank of Australia has suffered a major data breach involving the records of 20 million customers.  In 2016.  It has only made this public now after media reports.  The CBA only made a statement after the media reports.  That is a dreadful approach to data breaches.  Conceal until you can’t.  Then obfuscate.  The CBA is not an outlier in its reaction to this data breach.  Unfortunately it is all too common in Australia.  Perhaps that will change with the mandatory data breach notification scheme but proper enforcement is required.  Incredibly the Information Commissioner was notified in 2016.  And took no enforcement action.  No enforceable undertakings even.  That was, and remains, a dreadful mistake.  The Australian Prudential Regulation Authority that has been more active and transparent than the Information Commissioner’s Office in dealing with privacy breaches.  If that is not an indictment on the Information Commissioner Read the rest of this entry »

Law firms are a key target of hackers.  That has been known for some time. Lawyers hold sensitive client information which has value to competitors and criminals.  They also hold personal information which can be used for identity theft.  Finally they control bank accounts that hold signfiicant sums, such as proceeds of sales and purchases, client money held in trust and payments made to the lawyers but not distributed.  Law firms are also key targets because they are generally inept at data security.

The consequences can be catastrophic as the closure of the Panamanian firm Mossack Fonseca on 15 March 2018 after the release of the Panama Papers. A leading offshore Bermuda based law firm, Appleby suffered a data breach in October last year. In April last year a Providence law firm was hit with a ransomware attack which resulted in lost billings of $700,000.  The American Bar Association noted that in 2015, approximately one quarter of all U.S. law firms with 100 or more lawyers had experienced a data breach through hacker or website attacks, break-ins, or lost or stolen computers or phones and 15 percent of all law firms overall, regardless of size, had reported an unauthorized intrusion into the firm’s computer files, up from 10 percent in 2012.  In a report last year LogicForce found that law firms were in the main woefully unprepared with Read the rest of this entry »

The Acting Privacy Commissioner, Angelene Falk, recently gave a speech titled Privacy in Digital Media and Digital Advertising.

It is a speech very much in the vein of the previous Privacy Commissioner, completely unobjectionable, very reasonable, topical and accurate.  It hit the current affairs notes, commenting on Facebook/Cambridge Analytica and the topical regulatory change, the upcoming implemention of the GDPR in Europe.  It also is completely neutral about what the regulator expects in concrete terms and what it may do in “fostering a privacy culture…”  And that does not bode all that well for a change in direction for one of the least effective regulators at the Commonwealth level.  Bromides and exhortations to comply with the law are fine but never as effective as strategic and forceful enforcement which will send a message to the market.

The speech relevantly Read the rest of this entry »

In August 2017 Uber entered into a consent agreement with the US Federal Trade Commission (FTC) arising out of a data breach in May 2014 which revealed Uber’s unreasonable security practices.  I did a post on this settlement in August here. Settlements with the FTC can be onerous, unlike the limp enforceable undertakings in Australia, but better than being the subject of litigation.  Unfortunately Uber knew in 2016 that it had suffered a data breach in 2016 from lax security associated with third party cloud services, while the FTC was investigating the 2014 breach, but did not disclose it to the FTC.  In fact it deliberately covered it up and attempted to pay off the hackers (see my post in November 2017). A classic case of the cover up causing more problems than the breach for the organisation.

The FTC described it Read the rest of this entry »

The Office of the Australian Information Commissioner has published the first quarterly report on data breach notifications under the mandatory data breach notification legislation which came into effect on 22 February 2018. Not surprisingly the on a pro rata basis the number of notifications far exceeds the rate of notification under the previously voluntary scheme, 63 breaches in 6 weeks as opposed to 114 notifications in the last 52 weeks of the voluntary scheme.  If the rate of notifications remain consistent then 546 reports could be expected, almost 5 times the rate under the voluntary scheme. Because the legislation requires the organisation and agency to undertake self assessment as to whether a breach requires notification and some organisations will seek to take a less conservative approach, and take a risk in doing so, the figures are probably not a complete record of data breaches Read the rest of this entry »

The national data breach notification laws are marching towards the first month of operation.  It is not surprising that there have been no reported notifications under the law.  It is necessary to Read the rest of this entry »

It Governance compiles monthly and annual records of recorded data breaches.  For February 2018 it calculated that there were 2,234,633 data breaches.  A significant number but Read the rest of this entry »

Arising from the Royal Commission into Domestic Violence the Victorian Government enacted the Family Violence Protection Amendment (Information Sharing) Act 2017.  Through it the words “imminent” has been removed from Information Privacy Principles and Health Privacy Principles of the Privacy and Data Protection Act 2014 and the Health Records Act 2001.  The amendment will lower the threshold for the disclosure of information where there is a serious threat of harm. The change impacts particular agencies within the Victorian Government service.  The focus will now Read the rest of this entry »