Privacy policies are legally required under most countries’ legislation including Australia (subject to some exceptions which we will discuss below).
Firstly, your law(s) of reference determine which rules you’re subject to.
Simply put, the laws of a particular region [for example, the EU GDPR] can apply to you in addition to local Australian law even if you don’t live, or run your business or charity (also known as a not-for-profit or NFP) there.
In general, the laws of a particular region can apply if your business or NFP:
➲ Base your operations there; or
➲ Use processing services or servers based in the region; or
➲ Service targets users from that region (example: accepting payment in Euros).
So to be clear, this basically means that regional regulations may apply to you and/or your business or charity whether you’re located in the region or not.
Be on the safe side, ensure you comply with the strictest regulations.
For that reason, it’s always advisable that you approach your data processing activities with the strictest applicable regulations in mind.
Regardless of whether legal obligations apply, all customers/clients today fully expect their personal data will be respected + protected.
Any breach, aside from potentially leading to legal consequences, will directly impact your business reputation, and ultimately could cause your business or charity to shut-down due to public loss of confidence.
The Privacy Act and Australian Privacy Principles (‘APPs’) govern the collection, storage, use and disclosure of Personal Information.
Australian businesses/NFP's are bound by the Privacy Act if they:
➲ “Opt-in” or publicly volunteer to be regulated;
➲ Handle Personal Information (defined below) + have $3 million or more in annual turnover; or
➲ Are captured by the second set of criteria set out in the Act.
Caution: The additional “second set” of criteria mean that every business or charity regardless of turnover may be caught if they sell or purchase Personal Information or handle specific categories of Personal Information, such as TFN (Tax File Numbers, Health + Medical Data, etc.)
Small business/NFP operators generally are exempt from the Privacy Act unless one of the above-mentioned points apply.
If you are still unsure you should take the cautious approach and put relevant privacy measures in place as well as seek Independent Legal Advice.
Personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
➲ Whether the information or opinion is true or not; and
➲ Whether the information or opinion is recorded in a material form or not.
The above definition of Personal Information is quite broad, and can include Internet Protocol (IP) addresses, Unique Device Identifiers (UDIDs) such as for a mobile phone or tablet, and other unique identifiers in specific circumstances.
Location information, may also be covered because it can reveal user activity patterns and habits.
If you are unsure whether you are using Personal Information please refer to this guide issued by the OAIC, and if still unsure please seek independent Legal Advice.
Important: If you trade in, or use Personal Information to sell advertising, including via an app, you’ll likely fall under the Privacy Act.
A business or NFP is “trading” in Personal Information if it collects from or discloses to someone else, an individual’s Personal Information for a benefit, service or advantage.
A benefit, service or advantage can be any kind of financial payment, concession, subsidy or some other advantage or service.
For example, buying a mailing list without first getting the consent of all the individuals on that list, or disclosing customer details to someone else for some commercial (monetary or otherwise) gain.
If you trade in Personal Information you will have to comply with the Australian Privacy Principles in the Privacy Act.
Complying with the Privacy Act does not prevent you from collecting Personal Information for your business needs, but it does mean you must follow the rules about how to handle that information.
If you are unsure whether you are using Personal Information to sell advertising, you should seek Independent Legal Advice.
There are significant potential penalties that can be imposed for non-compliance, and for repeat breaches, including enforceable undertakings and fines of up to $1.7 million per violation.
iubenda provides an easy to use, comprehensive and self-updating solution from the EU where the legal privacy framework is even more stringent than that of Australia.
Click this link to access the original article on iubenda's website.
The original article includes a table created by Blue Ocean Law Group℠ listing the relevant APP (Australian Privacy Principle) requirements, the related iubenda feature and comments on how it applies.
As Australia moves towards the standards set by the EU, including potentially larger fines, regular audits and legal reviews will become even more important.
This is where the iubenda solution truly shines.
All legal documents generated with iubenda are hosted by iubenda + regularly updated to meet the latest legal requirements.
You can read more about the benefits of this here.
While iubenda’s solutions make compliance easy for many aspects of the law, full business compliance requires a holistic approach which includes regularly auditing your internal processes to see where other obligations may apply.
The following is a (non-exhaustive) list of additional compliance obligations imposed by Australian Law which may apply to you:
➲ Non-privacy-policy related aspects of the Privacy Act 1998 – for example, APP8 – Direct Marketing; APP11 – Security of Personal Information. For more information, read this Guide to the APP’s;
➲ The SPAM Act.
This article was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Blue Ocean Law Group℠ also collaborates with iubenda to present regular free webinars entitled:
This article is intended for general interest and information only. It is not legal advice and nor should it be relied upon or used as such. Always consult a lawyer for specialist advice specific to your needs and circumstances.