Archive: 2021

1
Mask Off: Social Media Giants to Unmask Trolls or Risk Themselves Becoming Liable for Defamation Payouts
2
Privacy Pandemic: Australians Losing Trust in Institutions’ Use of Their Data
3
New GDPR Guidelines on Data Transfers
4
And it’s here! China’s new privacy laws come into effect
5
FACIAL RECOGNITION REVERSION – FACEBOOK TO SHUT DOWN FACIAL RECOGNITION SYSTEM, AUSTRALIAN REGULATOR CRACKS DOWN
6
Long awaited increase to privacy breach penalties – a step closer to reality
7
Good practice – the storage of COVID-19 vaccination certificates
8
Ransomware plan of action
9
Privacy obligations when collecting COVID-19 vaccination status
10
Reminder for our Apple-friendly readers

Mask Off: Social Media Giants to Unmask Trolls or Risk Themselves Becoming Liable for Defamation Payouts

By Cameron Abbott, Rob Pulham, Warwick Andersen, Max Evans and James Gray

In a significant development in online regulatory oversight, the Australian government announced over the weekend that it will introduce new laws handing Australian courts the power to order social media companies to reveal the identities of anonymous trolls or risk themselves being liable for defamation payouts.

The so called “social media anti-trolling legislation” which the government has said will be introduced into parliament this week proposes to require social media companies stand up a functional and easy-to-use complaints and takedown process for users, who upon suspecting they are being defamed, bullied or attacked may file a complaint with the social media platform requesting that the relevant content be removed.

If that request is denied, the complainant can ask the social media company to provide the details of the “troll” so as to enable the complainant to commence an action. If this request is further denied, or if the social media platform is “unable to do this”, complainants may apply to obtain a court order requiring the social media company to release the identification details of the anonymous user so that a defamation action may be pursued. Failure to comply with such a court order will render the social media company themselves liable for the defamation claim.

Significantly, the reports indicate that these new laws will push legal responsibility for defamatory content from the author or page manager to the social media company which runs the platform. This represents a key move away from social media platforms being distributors of content but rather, in the eyes of online safety, being deemed publishers themselves. We will keep you posted as these proposed laws progress.

Privacy Pandemic: Australians Losing Trust in Institutions’ Use of Their Data

By Cameron Abbott, Rob Pulham, Max Evans and James Gray

In the age of QR code check-ins and vaccination certificates, as Australia edges towards a post-pandemic (or mid-pandemic, it increasingly seems) “normal”, new research from the Australian National University (ANU) has revealed that Australians have become less trusting of institutions with regards to data privacy.

The ANU researchers said that the decrease in public trust between May 2020 and August 2021 was small but “statistically significant”. A key reason for this decrease, according to the researchers, was concern around “how their private data from check-in apps might be used by major institutions” as lockdowns and the use of apps for contact tracing intensified.

The institutions which experienced the greatest loss of trust were social media companies (10.1% decline), telecommunications companies, and federal, state and territory governments. This echoes sentiment from the OAIC following its recent ‘community attitudes to privacy’ survey that Australians trust social media companies the least when it comes to handling personal information, followed by the government.

While it remains to be seen whether this loss of trust becomes a permanent trend, one way to make Australians more comfortable with an organisation’s data practices – as reinforced by the OAIC – is to ensure the purpose of the collection and use of personal information is clearly understood. The OAIC has found that Australians are increasingly questioning data practices where the purpose for collecting personal information is unclear.

With increased penalties for privacy non-compliance looming, there’s never been a better time to revisit your privacy policies and collection statements to make sure that these are clear, so your organisation can stand out against this trend and build consumer trust.

New GDPR Guidelines on Data Transfers

Claude-Étienne Armingaud, Camille Scarparo and Bastien Pujol

On 19 November 2021, the European Data Protection Board (“EDPB”) adopted new guidelines on the interplay between Article 3 GDPR (territorial scope) and Chapter V GDPR (transfer of personal data to third countries or international organization) of the General Data Protection Regulation (“GDPR”).

Those draft Guidelines aim at clarifying the mechanism of international transfers and more specifically provide a necessary assistance to controllers and processors in the European Union (“EU”) or otherwise subject to GDPR, including guidance on when a data importer would be subject to GDPR and an interpretation of the concept of international transfer.

In order to characterize a processing as a “transfer”, the EDPB relied on the three following cumulative criteria:

  1. The data exporter (a controller or processor) is subject to the GDPR for the given processing;
    • As a reminder, while GDPR generally applies to all entities processing personal data and established in the EU, it can also have an extra territorial reach for certain processing operations consisting in (i) offering products or services to individuals in the EU (e.g. ecommerce and apps) or (ii) monitoring of EU individuals’ behavior taking place in the EU (e.g. cookies and other tracking technologies).
  2. The data exporter transmits or makes available the personal data to the data importer (another controller, joint-controller or processor); and
    • In that regard, the mere remote access to the data would still qualify as a “data transfer” and it remains to be hopefully clarified in the final Guidelines whether the sharing of personal data among joint-controllers (both subject to GDPR from the inception of the processing operations) would in and of itself be considered as a data transfer.
  3. The data importer is in a third-country or is an international organization.

In addition, a processing that meets these three criteria will be considered a transfer when the importer is established in a third-country and subject to the GDPR following provisions of article 3.2 GDPR. The EDPB considered that when the controller located in a third-country is already subject to GDPR, “less protection/safeguards are needed”. Nevertheless, conflicting national laws, government access in the third-country as well as the difficulty to enforce and obtain redress against an entity outside the EU should be addressed when developing relevant transfer tools.

The EDPB specified that personal data directly collected from the data subjects, at their own initiative, should not to be considered as a transfer.

An online public consultation is opened on the matter until 31 January 2022.

And it’s here! China’s new privacy laws come into effect

By Cameron Abbott, Rob Pulham and Ella Richards

On 1 November 2021 the People’s Republic of China (PRC) effected the Personal Information Protection Law (PIPL).

The PIPL joins existing Cybersecurity Law and Data Security Law to broaden privacy obligations within the PRC. This comprehensive legislation governs the treatment of personal information within the PRC and strengthens the existing data localisation requirements.

Our colleagues have summarised the PIPL Draft Bill here and prepared advice on the collection of employee’s personal information under the PIPL here.         

FACIAL RECOGNITION REVERSION – FACEBOOK TO SHUT DOWN FACIAL RECOGNITION SYSTEM, AUSTRALIAN REGULATOR CRACKS DOWN

By Cameron Abbott, Rob Pulham, Max Evans and James Gray

Facebook (now referred to as Meta) has announced that it will shut down its decade-old Face Recognition system as part of a company-wide move to reduce the use of facial recognition.

The shutdown will see Facebook delete more than one billion individuals’ facial recognition templates and cease automatically recognising them in photos and videos posted to the platform. Facebook is no stranger to facial recognition controversy, having reached a $550 million USD settlement following an Illinois class action over the non-consensual collection and storing of users’ biometric information.

In its announcement, Facebook highlighted the benefits of facial recognition technology, such as improving accessibility for the visually impaired, but also conceded that regulatory uncertainty and growing concerns about the potential misuse of the technology outweighed those positive use cases.

The voluntary move by Facebook may be a prudent risk reduction step in Australia given there have been recent moves by the Australian privacy regulator against the indiscriminate use of facial recognition tools, including recently ordering an organisation to cease collecting and to destroy its existing facial images and biometric templates in respect of Australian individuals.

This certainly isn’t the end for facial recognition systems. Facebook suggested in its announcement that it intends to develop future applications for the technology once the IT environment allows for greater transparency, user control and privacy. We will keep you posted.

Long awaited increase to privacy breach penalties – a step closer to reality

By Cameron Abbott, Rob Pulham, Max Evans and Ella Richards

On October 25 the Australian Attorney-General’s Department released a draft bill amending the Privacy Act 1988 (the Draft Bill), inviting industry submissions by 6 December 2021.

We have been hearing about an alignment with Australian consumer and competition law penalties for quite some time – and the Draft Bill does not disappoint.

Under the Draft Bill, the maximum penalties applicable to companies for serious or repeated privacy breaches will increase to the greater of:

  • $10 million
  • three times the value of any benefit obtained through the misuse of information, or
  • 10% of the corporate group’s annual Australian turnover.

The Draft Bill also enables the introduction of an online privacy code, covering a wide scope of organisations to regulate social media services, large online platforms and data brokerage services. It is expected that industry will be given the first opportunity to develop the code, for approval by the Commissioner – with the ability for the Commissioner to develop the code in certain circumstances.

Finally, the Draft Bill introduces information sharing powers to facilitate greater engagement between the Information Commissioner and law enforcement bodies, alternative complaint bodies and State, Territory or foreign privacy regulators. This means the Information Commissioner or the receiving authority will be able to share information and documents to more effectively exercise their respective functions and powers.

With regulators banding together, maximum penalties becoming meaningful and a binding online privacy code on the horizon – there has never been a better time to get your Privacy house in order!

Good practice – the storage of COVID-19 vaccination certificates

By Cameron Abbott, Rob Pulham and Ella Richards

As the public’s focus in NSW and Victoria turns quickly to reopening and emerging from lockdowns, we have experienced an increased focus across the country on vaccination rates. Public health orders and laws in several Australian jurisdictions have changed to require businesses to, amongst other things, collect, store and hold vaccine information about their workers, and to take steps to ensure unvaccinated persons do not enter their premises.

This has led to businesses collecting vaccination information including in the form of government-issued COVID-19 vaccination certificates. However the collection of this information creates additional legal and cyber security risks. Some federal government issued certificates contain an individual healthcare identifier (IHI) – a number individually identifies an Australian for healthcare purposes (it is more sensitive than your Medicare number). The IHI combined with the individual’s name and date of birth creates an attractive opportunity for cyber criminals. It is so sensitive that it comes with its own specific legislation sanctions including criminal penalties for breach.

Businesses should ensure they have the right processes in place when collecting and storing this kind of information to avoid exposure to civil and criminal penalties, including up to two years’ imprisonment for improper use or disclosure of an IHI.

For more information on the appropriate processes for collection and storage of vaccination information, please contact Cameron Abbott from our Privacy team. K&L Gates will keep you informed of any further updates.

Ransomware plan of action

By Cameron Abbott, Rob Pulham and Ella Richards

Following the 60% increase in ransomware attacks over the past year, the Department of Home Affairs has released a Ransomware Action Plan – proposing to introduce mandatory reporting requirements for companies who have been hit by a ransomware attack.

Under the proposal, companies with a turnover of $10 million or more per year will be required to inform the Australian Cyber Security Centre soon after experiencing a ransomware attack and will face civil penalties if they fail to comply. The government is also planning to introduce a standalone offence for cybercriminals who seek to target critical infrastructure as part of the Security Legislation Amendment (Critical Infrastructure) Bill 2020.

This document is part of Australia’s overarching 2020 Cyber Security Strategy, with industry and community consultation anticipated in the near future. Stand by for further developments.

Privacy obligations when collecting COVID-19 vaccination status

By Cameron Abbott, Rob Pulham and Ella Richards

Some Australian jurisdictions have imposed obligations on businesses and employers to either sight, or collect and hold, information about their workers’ COVID-19 vaccination status, or to take reasonable steps to ensure unvaccinated individuals do not enter their worksites or premises. For example, on 7 October 2021, the Premier of Victoria released Directions that require employers to collect information about workers’ COVID-19 vaccination status before allowing them to work anywhere outside of the employees’ usual place of residence. Industry-specific obligations (with some differences to those Directions) also apply to some settings such as education, construction and healthcare. Similarly, under public health orders in New South Wales, certain businesses from 11 October 2021 must take reasonable steps to ensure people who are not fully vaccinated do not enter their premises.

The Victorian Government Directions for workers are in effect from today, 15 October 2021, meaning that many employees must provide proof of either receiving their first dose or having booked their first dose by 22 October 2021.

To comply with privacy obligations (including under applicable health records legislation), employers must provide employees with a clear collection statement that outlines, among other things:

  1. the types of sensitive information that the employer is collecting;
  2. the purpose of the collection;
  3. who the employer may disclose the information to, including specifying if any of these parties are outside of Australia; and
  4. a reference to the employer’s Privacy Policy that applies to the information collected about employees.

Even where a business is not subject to these mandatory collection requirements, they may wish to collect this information from employees to assist the business to maintain a safe and secure working environment (including, for example, to provide encouragement to staff to get vaccinated – subject to the requirements around providing incentives to do so).

If you would like advice on your Privacy obligations as an employer, please reach out to Cameron Abbott from our Privacy team. For further information on the Victorian Government Directions, see the Alert from our K&L Gates employment team here.

Reminder for our Apple-friendly readers

By Cameron Abbott and Ella Richards

Apple has released critical security updates for a vulnerability found by researchers at Citizen Lab for several Apple devices. This includes all iPhones, iPads, Mac Computers, Apple Watches and the Safari Web Browser.

The vulnerability could allow a threat actor to infect devices with spyware without the users knowledge. Once infected, the threat actor could then perform any action on the device that a normal user would. This could include actions like turning the camera and microphone on or recording messages, texts, emails, and phone calls.

Apple encourages all users of their products to update their devices as soon as possible.

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