Cyber Law Watch

Good report card but data breaches are up, with no sign of letting up

Mar 08 2023

By Cameron Abbott, Rob Pulham, Stephanie Mayhew and Dadar Ahmadi-Pirshahid

[Featured image from a linkedin post of Office of the Australian Information Commissioner made on 3 March 2023]

Shortly after the Government announced their ambition to make Australia a global leader in cyber security, Australia has been named the country with “the greatest progress and commitment toward creating a cyber defence environment” in MIT’s Cyber Defence Index of 2022/23.

However, the Office of the Australian Information Commissioner’s latest notifiable data breaches report paints a different picture. The Commissioner reported a 26% increase in the number of total reported data breaches and a 41% increase in the number of reported data breaches arising from malicious or criminal attacks compared with the first half of 2022. Health service providers and the finance sector were the worst hit, together representing almost a third of reported data breaches.

In releasing the report, the Commissioner once again stressed the need for organisations to collect only the minimum amount of personal information required and deleting it when it is no longer needed. In the report the Commissioner has recommended a number of steps to address the kinds of issues featured in the second half of 2022, including:

Mar 05 2023

By Amigo L. Xie

2023 is destined to be a big year for the hottest issues of the China Personal Information Protection Law (PIPL) for MNCs doing business in or with China especially in the areas of: cross-border personal data transfers, localization, compliance, and enforcement.

It is worth noting the following milestones in your timeline for China data privacy compliance in 2023:

Mar 05 2023

By Cameron Abbott, Rob Pulham and Dadar Ahmadi-Pirshahid

Not content with merely implementing broad-scale privacy reform, the Government has announced a new position, the Coordinator for Cyber Security to be added to the Department of Home Affairs as a step towards their aim of “making Australia the most cyber secure nation by 2030“. This would seem to be a rather aspirational target!

The Coordinator will be supported by a National Office for Cyber Security, and their role will be to oversee steps to prevent future cyber security incidents and to help manage cyber incidents as they occur.

Mar 03 2023

By Cameron Abbott, Rob Pulham and Stephanie Mayhew

Currently, most small businesses (with some exceptions) are not covered by the Privacy Act – with the threshold shaping a small business being an annual turnover of $3 million or less. However the Attorney General’s Department recognises that Australians want their privacy protected and that small businesses shouldn’t be excepted from this.

In the long term, proposal 6.1 seeks to remove the small business exemption but only after:

an impact analysis has been undertaken
appropriate support is developed
in consultation with small businesses, the most appropriate way for small business to meet their obligations is determined (propionate to the risk) – e.g. through a code, and
small businesses are in a position to comply with these obligations.

Proposal 6.2, in the shorter term, seeks to ensure that small businesses comply with the Privacy Act in relation to the collection of biometric information and remove the exemption from the Privacy Act for small businesses that obtain consent to trade in personal information (trading in personal information will mean the Privacy Act applies).

Mar 01 2023

By Cameron Abbott, Rob Pulham and Stephanie Mayhew

The section of the Report dealing with the employee records exemption highlighted significant debate and difference of opinion. Employers expressed a strong desire to retain or even strengthen the exemption; employee representatives consider reform is needed.

In that context the Report does not conclude how the changes should take effect, but proposals 7.1(a)-7.1(d) recommend stronger protection of private sector employee information, to:

enhance transparency over what employee information is collected and why
ensure employers have adequate flexibility to deal with employees’ information to administer the employment relationship (and addressing whether consent should be required to collect sensitive information)
ensure adequate security and destruction measures around employee personal information, and
notify employees and the OAIC of data breaches involving employee personal information.

What does this mean for my organisation?

Private sector employers who don’t yet have a good grasp of the breadth of information they collect and hold about their employees will need to stocktake their collection activities and sharpen their focus on why they collect such information; prepare appropriate collection notices and employee privacy policies (if not used already); and ensure employee information is appropriately covered in their security measures and considered in their data breach response plans.

Feb 27 2023

By Cameron Abbott, Rob Pulham and Stephanie Mayhew

Under proposals 4.1-4.4 of the Report, changes to broaden the definition of Personal Information are on the horizon. Under the proposed amendments, the word “about” in the definition of Personal Information will be amended to “relates to”. That is – “information or an opinion that relates to an identified individual…”. This brings the definition in line with other legislative frameworks that regulate privacy and ensures consistency with the language used in the GDPR definition of ‘Personal Data’.

Amendment of the definition of ‘collection’ is also proposed to expressly cover information obtained by any means, including inferred or generated information. The Report also states that ‘reasonably identifiable’ should be supported by a non-exhaustive list of circumstances to which APP entities will be expected to have regard to in their assessment of what is ‘Personal Information’.

What does this mean for my organisation?

With such a broader interpretation, APP entities will need to have regard to a larger set of information that could fall within the definition. This will see information such as mobile location data, IP addresses, social media handles, mobile advertising IDs and other technical information more clearly fall within the definition.

Feb 16 2023

By Cameron Abbott, Rob Pulham and Stephanie Mayhew

The Government has today released the Report of the Attorney General’s Department’s review of the Privacy Act 1988 (Cth). The Government is seeking feedback on the 116 proposals in the Report before deciding what further steps to take. Submissions on the report are due on 31 March 2023. With this timing, it’s possible that we will see the review finalised towards the end of the first half of 2023.

The report can be accessed here.

The proposals made in the Report centre around:

Jan 23 2023

By Claude-Étienne Armingaud, Camille Scarparo and Alexandra Séguis

This survey follows the CNIL’s announcement on 24 November 2022 that it aims at “better understanding the economic challenges associated with the collection and processing of personal data in mobile applications” as part of its 2022-2024 strategic plan.

The CNIL considered data collection via mobile applications greatly lacks transparency as opposed to cookies collection on websites.

The expected inputs are to be used for the purpose of drafting recommendations to be submitted to public consultation during the second semester of this year.

Concurrently to its ever-active enforcement of website cookie framework, the CNIL also recently started going after mobile applications for their use of personal data, often leverage as a primary source of revenue for free-to-play mobile games. The most recent example being the French mobile game publisher Voodoo SAS, with a fine of EUR3 million for breach of user consent for targeted ads on 29 December 2022. Indeed, the CNIL considered that even when users did not consent to the tracking for advertising purposes, Voodoo still accessed the IDFV (Apple’s “IDentifier For Vendors” (“IDFV”) – an identifier assigned to app operators, which facilitates targeted advertising) and processed browsing information for advertising purposes, constituting a violation of French privacy law and the GDPR.

The CNIL now calls for economic contributions from experts, interest groups, regulatory entities and experienced private individuals in the field. The call for contributions closes on 10 February 2023. Contributions can be submitted by completing a questionnaire and/or a written statement at the following email address: ecodesapplis@cnil.fr.

All contributions will be covered by professional secrecy and will be published in the form of a synthetic and aggregated report.

New Privacy Enforcement Act commences in Australia

Dec 14 2022

By Cameron Abbott, Rob Pulham and Stephanie Mayhew

As of yesterday, the Privacy Legislation Amendment (Enforcement and Other Measures) Act 2022 (Privacy Enforcement Act) is now in effect after receiving Royal Assent on 12 December 2022.

As we have previously shared, the Privacy Enforcement Act increases the maximum penalties for serious or repeated privacy breaches. For body corporates/organisations this increases the penalty from the current $2.22 million to whichever is the greater of:

Dec 02 2022

By Cameron Abbott, Rob Pulham and Stephanie Mayhew

Earlier this week (on 29 November), the Australian Parliament passed the Privacy Legislation Amendment (Enforcement and Other Measures) Bill 2022 (Bill) which was introduced to Parliament on 26 October 2022.

The Bill amends the following:

Privacy Act 1988 to expand the Australian Information Commissioner’s enforcement and information sharing powers and increase penalties for serious or repeated interferences with privacy;

Australian Communications and Media Authority Act 2005 to enable the Australian Communications and Media Authority to disclose information to a non-corporate Commonwealth entity that is responsible for enforcing one or more laws of the Commonwealth; and

Australian Information Commissioner Act 2010 to allow the Australian Information Commissioner to delegate certain functions or powers.

Good report card but data breaches are up, with no sign of letting up

Key Dates for China’s standard contractual clauses compliance

Australia to be the most cyber secure nation?

Breaking Down the Privacy Act Review Report #3: Removal of the Small Business Exemption

Breaking Down the Privacy Act Review Report #2: Modifying the employee records exemption

Breaking down the Privacy Act Review Report #1: More Personal Information to be captured by the Act

The wait is over: The Privacy Act Review Report has been published!

SURVEY ON THE ECONOMICS ON PERSONAL DATA ON MOBILE APPS LAUNCHED BY FRANCE’S PRIVACY WATCHDOG

New Privacy Enforcement Act commences in Australia

Australia passes Privacy Legislation Amendment (Enforcement and Other Measures) Bill 2022