Privacy legislation for the modern age

Obsession with alleged privacy issues concerning celebrities distracts attention from need for long overdue reform, argues the University of Auckland's Gehan Gunasekara

Issues concerning privacy tend to flare up around election time and this election appears to be no different, with the news that the New Zealand First leader, Winston Peters is considering making a privacy complaint over disclosure of information concerning his superannuation overpayment. This comes shortly after news that the Privacy Commissioner has again rapped the police for unlawful search of banking records of a blogger in relation to the hunt for Rawshark, the hacker behind the Dirty Politics book which featured at the last election.

It remains to be seen if the latest privacy stoush will go the way of the fallout at the last election from the Dotcom saga and Dirty Politics. The issue of Ministers using personal information has happened before, notably in 2009 when Minister Paula Bennett released additional information about two beneficiaries who, she alleged, had gone public with only part of their story. Her actions led to a complaint from the beneficiaries involved. The Privacy Act, however, contains only narrowly worded exceptions – such as disclosures to avoid serious threats to health and safety - which do not allow Ministers or officials to disclose matters in the public interest generally. In the Bennett case it could also be argued the beneficiaries concerned had implicitly authorised the release of information by themselves disclosing information, which was not the case with Peters.

What appears to have been missed through all the hype, though, is that the Privacy Act itself dates from 1993 and may no longer be fit for purpose in the digital age. Indeed, the Law Commission presented a detailed set of recommendations for its reform and replacement in 2011 that have yet to be acted on. Rather than focusing on their own complaints under the Privacy Act, politicians on all sides should have come together to pass a new Act to keep New Zealand at the leading edge internationally when it comes to protecting individual privacy. Sadly, this has not happened.

The Law Commission’s 2011 recommendations may now themselves be outdated due to further global developments. Our Privacy Commissioner has suggested there should be a new right to data portability – meaning individuals would be able to take their data in electronic form when transferring from one business or agency to another, which would potentially boost competition in the market. For instance, this would allow an individual to take their LinkedIn or Facebook profile, contacts and so forth with them if they transfer to an alternate company. This mirrors the present ability to transfer mobile phone numbers between networks.

Another recommendation relates to controls on re-identification of anonymised or aggregated information. For example, sensitive health information can be studied by researchers after all identifying information about the individuals is removed. The benefits of research from such data sets are undeniable but technology now exists to identify individuals from the anonymous data by matching it against other information. Where this is done other than for a legitimate reason (such as to identify a serial killer), individuals would have a right to sue.

Reform might also consider a limited ‘right to be forgotten’. Some jurisdictions, including US states, have given juveniles a limited right to have information about them posted by themselves or others erased when they reach maturity. This allows for youthful peccadillos to be forgotten, and links and republication of them (for example, in inappropriate posts on social media sites) to be forbidden. It means young people who have experimented and explored boundaries will not be tainted forever by youthful indiscretion.

Privacy Foundation New Zealand, which was launched earlier this year as a not-for-profit society to advocate for New Zealanders’ privacy, has approached leaders of all parties in this year’s election to ask how willing they would be to address reform. The responses, which are on the Foundation’s website, have so far been mixed.

The public now has an opportunity to seek commitments from politicians to adopt these much-needed reforms. It is an opportunity that must be grasped.

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