Peter A Clarke

The co ordinated attack on Australian Super Funds was always going to generate a lot of press. But despite what some cynics might suggest, the press need something to write a story. Unfortunately the handling of the data breach has been, at best, pedestrian. The first problem is the lag between discovering the breach and notifyng any authority. It is not mandatory to notify the police and under the mandatory data breach notification laws an affected organisation has up to 30 days (rather than the more rigorous 72 hours in the GDPR). That said the optics in Australia seems to be that prompt notification gives organisations some cover. According to the Australian

story Tony Burke goes soft on Big Super as cyber attack sinks into farce the organisations are confused as to what they did and when they did. The AFP was notified 5 days after the attack and says that the Victoria Police would lead the investigation. The Victoria Police is yet to formally investigate. The bigger concern is the evidence appearing that suggests that there were repeated warnings for the funds to strengthen their online security and nothing was done about it. Those warnings did not just come from agencies and organisations but also from customers who wanted multi factor authorisation and were fobbed off. Multiple regulators have Read the rest of this entry »

The statutory tort of interference with privacy comes into effect on 10 June 2025; 2 calendar months away.

The tort will be prospective only in effect and the limitations period is 1 year.  It is the first time that individuals will have a stand alone right to take action in the Federal Magistrates Court for interference with their privacy; either or both intrusion upon seclusion or misuse of personal information.  The actions in equity and negligence which may deal with privacy breaches remain in existence, which have no limit on general damages or right to aggravated damages.  It will be interesting to see whether the tort is pleaded together with equitable causes of action.

The University of Western Sydney has suffered a data breach involving the loss of data of 10,000 individuals. It has posted a statement today which reveals that on 24 March 2025 it became aware of a post on the dark web referring to information taken from the university. That was over 2 weeks ago. The post itself was dated 1 November 2024, over 5 months ago. The University’s statement follows the usual pattern in Australia of saying it notified the various authorities. It lists those authorities. What it hasn’t done is notify the 10,000 current and former students but “expects to” do so. It is a fairly average notice, far below that which one would expect of a large organisation. It says very little in a lot of words.  It concludes by Read the rest of this entry »

The National Institute of Standards and Technology have released an especially valuable document, the Incident Response Recommendations and Considerations for Cybersecurity Risk Management.

The abstract provides:

This publication seeks to assist organizations with incorporating cybersecurity incident response recommendations and considerations throughout their cybersecurity risk management activities as described by the NIST Cybersecurity Framework (CSF) 2.0. Doing so can help organizations prepare for incident responses, reduce the number and impact of incidents that occur, and improve the efficiency and effectiveness of their incident detection, response, and recovery activities. Readers are encouraged to utilize online resources in conjunction with this document to access additional information on implementing these recommendations and considerations.

The Report provides a useful glossary for those reporting on or drafting protocols and procedures dealing with data breaches including:

• an event is any observable occurrence that involves computing assets, including physical and virtual platforms, networks, services, and cloud environments. Examples of events are user login attempts, the installation of software updates, and an application responding to a transaction request. Many events focus on security or have security implications.
• Adverse events are any events associated with a negative consequence regardless of cause, including natural disasters, power failures, or cybersecurity attacks. This guide addresses only adverse cybersecurity events. 
• A cybersecurity incident is “…an occurrence that actually or imminently jeopardizes, without lawful authority, the integrity, confidentiality, or availability of information or an information system; or constitutes a violation or imminent threat of violation of law, security policies, security procedures, or acceptable use policies.” with such incidents including:
  • Employing a botnet to send high volumes of connection requests to an internet-facing service, making it unavailable to legitimate service users
  • Obtaining administrative credentials at a software-as-a-service provider, which puts sensitive tenant data entrusted to that provider at risk
  • Intruding upon an organization’s business network to steal credentials and use them to instruct industrial control systems to shut down or destroy critical physical components, causing a major service disruption
  • Deploying ransomware to prevent the use of computer systems and cause multiple data breaches by copying files from those systems
  • Using phishing emails to compromise user accounts and using those accounts to commit financial fraud
  • Identifying a new vulnerability in network management appliances and exploiting the vulnerability to gain unauthorized access to network communications
  • Compromising a vendor’s software, which is subsequently distributed to customers in its compromised state

Regarding incident response roles and Read the rest of this entry »

The Information Commissioner’s Office (“ICO”) has published a review into the gathering of children’s data from services supplying them with current accounts, savings accounts, trust accounts, ISAs and prepaid cards. Given the greater concern about children’s privacy, long overdue, it is prudent to look at the review and consider what is being done in Australia.  What is clear is that failure to maintain proper standards with organisations will, if there is some data breach or other issue, result in acute embarrassment for organisations if the regulator reviews its processes and procedures.  Given the Privacy Commissioner now has powers to issue infringement notices/ compliance notices rather than going to the delay and expense of long and drawn out investigations and civil penalty proceedings this is a factor organisations should consider carefully.

Some of the findings from the review are:

• 69% of participants had policies and procedures in place to control the use of children’s data;
• only 67% of those organisations proactively monitored compliance with their policies and procedures.
• 45% of participants had limited assurance that staff are processing children’s information in line with internal or even legislative requirements.
• only 14% of participants had assigned responsibility for children’s data in policy or relevant job descriptions
• while 97% of participants provided staff with general data protection training however, only 18% of participants included content about the use of children’s personal information
• while 49% of participants say they provided children with age appropriate privacy information ess than a quarter of all participants have carried out any testing to check how easily children would understand their privacy information
• only 36% of children’s savings account products which are opened by parents but transferred to the child at 16 provided the child with privacy information during the transfer process
• When opening a child owned savings account, 83% of participants provided children with privacy information
• 5% of participants also required children to acknowledge that they have read the privacy information, usually recorded by signing the application form
• only 11% of these participants actually carried out any assessment as to whether children are competent enough to understand their notice
• 66% of participants indicated it would be the parent’s (where they are present) responsibility to ensure the child understood privacy information and no attempt would be made to confirm the child understood the privacy information
• 66% of participants reviewed the categories of information they collect on a regular basis to make sure it is limited to what is necessary
• 40% of participants collected special category data, limited to health data and will only be processed having obtained explicit consent.
• 24% of participants relied on consent obtained from the child to process their information for specific purposes. However, 42% of those participants relied on acknowledgement of information provided within privacy information or key facts documents to obtain the consent. This did not meet the requirements of the UK GDPR
• 88% of participants had no process in place to assess a child’s understanding of their data protection rights. For 34% of these participants this was because they had preset age limits which determined whether a child was able to exercise their rights or not.  n most cases this age limit was set at 13 years old although some participants had set this age as high as 16 years old.
• 20% of participants who offer products which process children’s information, but are controlled by parents, did not allow children to access their information or exercise this right at any age
• 96% of participants had an embedded process for verifying the age of children when an account is opened
• 63% of participants had a policy in place to govern communications provided to children, including marketing material. For 83% of participants the policy prohibited the provision of marketing material to children.
• 75% of participants provided communications which included general information about the service provider and also administrative account information. 29% of participants provided communications containing general organisational administrative information. 8% of participants provided marketing communications to children
• 33% of participants had a process in place to regularly update the contact information they hold
• Only 8% of participants required children to have access to their own email and/or phone to enable them to open an account, however if children did have these, then this information was recorded in the majority of cases where the child has some control over the account (current or savings accounts). 76% of participants used parents contact information such as email or phone to provide communications.
• Of the participants who do allow marketing to children, 75% of them included opt in and opt out options on the account application form.  The remaining 25% of participants sought consent from the parent only.

The Executive Summary Read the rest of this entry »

What many organisations fail to appreciate is that a data breach can result in multiple regulators investigating and taking action, not just the Privacy Commissioner. In fact the Privacy Commissioner can be the least aggressive. That is particularly the case with financial institutions where there are quite specific regulations regarding maintaining accounts and security. This is highlighted by the Australian’s article Australian super funds face steep fines after massive cyber attack. Australian Super will refund its members. And the story refuses to die as new facts emerge. And 2 days after the co ordinated attack there is a separate attack on another superfund, Cbus. Cbus says that it has been hacked. Which gives rise to feverish speculation and recollection of warnings about cyber risk being dismissed.

The exposure of Super Funds to regulatory action is significant.  There is a real problem with breaches of APP 11, the requirement to maintain proper data security.  Financial services licencees have obligations under section 912A of the Corporations Act 2001. In May 2022 the Federal Court found that R I Advice, a financial Services licensee had breached its licence obligations by failing to manage cyber security risks. In that case ASIC brought the civil proceeding. APRA also has jurisdiction.  Furthermore there is likely exposure on any representations Super Funds made about the security of their deposits and claims in equity. 

In addition to regulators investigation and bringing action the various cyber security agencies and the Federal Police become involved.  It becomes a hugely Read the rest of this entry »

The Australian reports in Griffith University subject to privacy, discrimination claims on how personal information can be casually misused as part of another process. On this occasion an academic forwarded a copy of a letter of censure addressed to a Mr Stella at his home address to third parties unconnected to the process. Worse. The letter was sent to people who complained about Stella which resulted in the letter being sent. That is a clear breach of privacy. The personal information was collected for the purpose of processing Stella’s application and administration of his attendance at the university. There was good reasons for that information being disclosed to others. The award of $10,000 is quite modest.

The article Read the rest of this entry »

As I have posted previously on 10 December 2024 the Privacy and Other Legislation Amendment Bill 2024 (Cth), received Royal Assent. Under the Privacy and Other Legislation Amendment Act 2024 (Cth) (Amendment Act), it introduces several significant amendments to the Privacy Act 1988 (Cth) (Privacy Act), many of which came into effect immediately upon assent. Others come into effect later.

The changes:

•  Statutory Cause of Action for Serious Invasions of Privacy: Comes into effect on a  10 June 2025.

Under the tort Individuals can take legal action against organisations or individuals for serious invasions of privacy. The two bases are intrusions into personal seclusion or misuse of personal information.  It is quite a complex tort.  The limitations period is 1 year from date the intrusion occurred or was discovered.

• Automated Decision-Making: Comes into effect on 10 December 2026
  

New transparency obligations require organisations to update their privacy policies to disclose when decisions are made using automated processes.

• Doxxing Offence: Came into effect on 11 December 2024. 

It is illegal to share someone’s personal information with the intent to harm. This offence is punishable by up to 7 years’ imprisonment.

• Children’s Online Privacy Code: Code to be developed and registered by 10 December 2026
  

The Office of the Australian Information Commissioner (OAIC) is required to develop a code addressing online privacy for children. There will be a consultation period of 60 days.

• Overseas Dataflows, Whitelist Powers: Came into effect on 11 December 2024.
  

The Minister has powers to ‘whitelist’ countries that provide substantially similar privacy protections, to assist entities disclosing personal information overseas.

•  Civil Penalty and Powers to Issue Infringement and Compliance Notices: Came into effect on 11 December 2024.

The Privacy Commissioner now has the powers to issue infringement notices and compliance notices for Read the rest of this entry »

23andMe is, or more accurately was, a personal genomics company. It collected genetic information. That is very sensitive. It suffered a data breach in October 2023 when hackers exploited an old password resutling in them gaining access to 6.9 million people. It became the subject of litigation and in June 2024 investigation by the Canadian Privacy Commissioner and the UK Information Commissioner. Early in March the ICO released a notice of intent to fine 23andMe with a 4.59 million fine. 23andMe has just filed for Chapter 11 bankruptcy protection. At minimum that means a restructure. It may continue operating after the restructure. That has raised serious security concerns about the genetic data it holds. The New York Attorney General has urged customers to contact the company to delete their data. In What users need to know about privacy and data after 23andMe’s bankruptcy filing the Conversation sets out the privacy and data management issues from this . That does not alter 23andME’s obligations to protection personal information.

The Conversation’s piece Read the rest of this entry »

T Mobile suffered a massive data breach in 2021. Ultimately T Mobile advised that personal information relating to 76 million customers had been accessed. It has been reported by MSN with T-Mobile prepares $350 million payments for data breach settlement.

The settlement highlights that data breaches can be a extremely costly experience for organisations.  The settlement sum is only one component of the costs.  There are costs associated with dealing with the regulator.  Sometimes more than one regulator.  There are usually heavy costs bringing in additional IT experts.  Hackers often leave chaos behind, particularly in ransomware attacks.  There may need to be rebuilding of the website, its programs and storage areas. In that context it remains concerning that so few mid sized companies put the necessary time and effort required to reduce the Read the rest of this entry »