Government Regulation, Legislation & Enforcement – Page 5

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

Oct 26 2021

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

Oct 24 2021

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.

Privacy obligations when collecting COVID-19 vaccination status

Oct 15 2021

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:

the types of sensitive information that the employer is collecting;
the purpose of the collection;
who the employer may disclose the information to, including specifying if any of these parties are outside of Australia; and
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.

An even ‘hacking’ field – Government Surveillance Bill passed by Parliament

Aug 30 2021

By Cameron Abbott and Ella Richards

The Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 (Identify and Disrupt Bill) passed both houses of federal parliament on 25 August 2021. The new legislation extends the power of law enforcement agencies to identify and disrupt suspected online criminal activity through the provision of three new warrants.

The new warrants provide the Australian Federal Police and the Australian Criminal Intelligence Commission with the power to:

Modify or delete the data of suspected offenders (data disruption warrants);
Collect intelligence on criminal networks (network activity warrants), and
Take control of a suspected offenders’ online account (account takeover warrants).

Anyone required to assist with government hacking is protected from civil liability. However, anyone who refuses to comply can face up to 10 years’ imprisonment.

Online criminal networks are evolving rapidly with the use of anonymising technology – making the detection of serious online crime near impossible. Encrypted applications such as Discord have stated that approximately 536 verified dealers sold $100,000+ of illegal substances/stolen goods in one week, despite Discord’s “zero-tolerance” approach to illegal activity.

On the other hand, the Office of the Australian Information Commissioner (OAIC) previously warned that the new warrant powers could adversely impact the privacy of a large number of individuals – including those with no suspected involvement in criminal activity.

The complexity of online crime makes it increasingly necessary for law enforcement agencies to level the playing field, identify suspected criminal activity and intercept that activity before it is actioned. However, proportionate consideration of individual privacy rights has created a lively debate in the passage of the legislation thus far.

The Surveillance Legislation Amendment (Identify and Disrupt) Bill 2021 is now awaiting Royal Assent. Keep an eye on our Cyber Law Watch blog further updates.

UK unveils plan to diverge from GDPR

Aug 30 2021

By Norin McFadden and Claude-Étienne Armingaud

The UK government has announced that it intends to consult on a new, post-Brexit data protection regime, potentially moving away from the UK General Data Protection Regulation that currently underpins the UK’s data protection legislation. The Digital Secretary, Oliver Dowden, said, “It means reforming our own data laws so that they’re based on common sense, not box-ticking.”

A public consultation on the new legislation will follow, but it is clear that the United Kingdom must be careful about any changes it makes to its data regime in order to avoid disrupting the EU-UK adequacy decision with EU GDPR awarded just two months ago. The adequacy decision allows personal data from the European Union to flow freely to the United Kingdom (and vice versa), without businesses needing to put any additional paperwork in place. In granting the adequacy decision, the European Union placed particular emphasis on the fact that the United Kingdom was continuing to base its data protection laws on the same EU GDPR rules that had applied when it was a member of the European Union. A European Commission spokesperson commented that the EU will be closely monitoring any developments in UK data laws and noted that: “In case of problematic developments that negatively affect the level of protection found adequate, the adequacy decision can be suspended, terminated or amended, at any time by the Commission.”

It will be interesting to see how far the United Kingdom diverges, particularly as the current trend is that other countries seem to be keen to state that their data protection laws closely follow the EU GDPR.

The UK government also announced that its preferred candidate to be the next Information Commissioner, head of the UK data protection regulator, will be John Edwards, currently in charge of New Zealand’s data regulator, a country that also maintains an EU adequacy decision.

Reminder for One-Month Deadline to Implement New SCCs in New Contracts

Aug 27 2021

By Jake Bernstein and Jane Petoskey

In early June 2021, the European Commission published a new set of standard contractual clauses (SCCs) effective June 27, 2021 for cross-border data transfers and between controllers and processors. The new SCCs cover changes in data protection laws, including the invalidation of the EU-US Privacy Shield and the fallout from the Court of Justice of the European Union’s (CJEU) Schrems II opinion (regarding US intelligence laws). The new cross-border data transfer SCCs also use a modular approach to allow for more accurate identification of roles and responsibilities of the contracting parties. In terms of timing, organizations may use the old SCCs in new contracts until September 27, 2021, and contracts existing before September 27, 2021 must change to the new SCCs by December 27, 2022. For additional information on the SCCs, read our K&L Gates EU Data Protection Alert here.

Please do not hesitate to contact the K&L Gates LLP Cybersecurity and Privacy team of attorneys if you need assistance updating new or existing contracts with the new SCCs by the above deadlines.

Get with the program – China’s new privacy laws are coming

Aug 27 2021

By Cameron Abbott and Ella Richards

The People’s Republic of China (PRC) passed the Personal Information Protection Law (PIPL) on Friday the 20th of August 2021. The new privacy regime strengthens the protection around the use and collection of personal data and introduces a new requirement for user consent.

The PIPL, closely resembling the European Union’s General Data Protection Regulation, prevents the personal data of PRC nationals from being transferred to countries with lower standards of data security; a rule that may pose inherent problems for foreign businesses. The PIPL was introduced following an increase in online scamming and individual service price discrimination – where the same service is offered at different prices based on a user’s shopping profile. However, while businesses and some state entities face stronger collection obligations, the PRC state security department will maintain full access to personal data.

Although the final draft of the PIPL is yet to be released, the new law is set to commence on the 1st of November 2021. Companies will face fines of up to 50 million yuan ($7.6 million USD), or 5% percent of their annual turnover if they fail to comply. For an in-depth discussion of the Draft PIPL released in August 2020, see our K&L Gates publication here.

Uber found to have breached Australian’s privacy following 2016 hack

Jul 27 2021

By Cameron Abbott and Jacqueline Patishman

In 2017, Uber disclosed to the Office of the Australian Information Commissioner (OAIC) a breach of its some 57 million global users and driver’s personal information (including approximately 1.2 million Australians). Last Friday, the OAIC determined that Uber had breached the Australian Privacy Act by failing to take reasonable steps to protect Australian’s personal information from unauthorised access.

To pay or not to pay the ransom? Organisations may find their decision easier with government guidance

Jul 26 2021

By Cameron Abbott, Rob Pulham and Jacqueline Patishman

The Cyber Security Advisory Committee (an industry based advisory panel established by the Minister for Home Affairs to provide independent strategic advice on Australia’s cyber security challenges) has recommended in its annual report that the federal government develop a clearer policy position on the payment of ransoms by organisations that have suffered ransomware attacks.

Would mandatory reporting of ransomware payments cause more good or trouble?

Jul 15 2021

By Cameron Abbott, Warwick Andersen and Jacqueline Patishman

Last month, the federal opposition (Shadow Assistant Minister for Cyber Security) introduced the private member’s Ransomware Payments Bill (the Bill) that proposes to make it mandatory for all Australian businesses and government agencies to notify the Australian Cyber Security Centre (ACSC) before paying a ransom to a ransomware attacker. Failure to notify will attract a penalty of 1,000 penalty units ($181,740).

Catagory:Government Regulation, Legislation & Enforcement