Tuesday, March 20, 2018

Mandatory data breach notification for Australian businesses

Mandatory data breach notification comes into force this Thursday

The Office of the Australian Information Commissioner (OAIC) has released new resources for the Australian public ahead of the commencement of the Notifiable Data Breaches (NDB) scheme on 22 February 2018.

The NDB scheme mandates that Australian Government agencies and the various organisations with obligations to secure personal information under the Privacy Act 1988 (Cth) (Privacy Act) notify individuals affected by data breaches that are likely to result in serious harm.

One of the new resources published by the OAIC, titled Receiving data breach notifications, provides useful guidance on what to expect when you receive a data breach notification, including how organisations might deliver notifications and when a privacy complaint can be made to the OAIC.

The other new resource, What to do after a data breach notification, provides a wide range of actions you can take to reduce the risk of experiencing harm after a data breach.

Among the information provided are tips on combatting the harm that may result from a breach involving financial information or contact information and steps to take when you believe you may be a victim of identity fraud.

The OAIC has worked with consumer groups, not-for-profits, and Australian Government agencies in the development of these resources.

The Australian Information Commissioner, Timothy Pilgrim, said, “the Notifiable Data Breaches scheme formalises a long-standing community expectation to be told when a data breach that is likely to cause serious harm occurs.

“The practical benefit of the scheme is that it gives individuals the chance to reduce their risk of harm, such as by re-securing compromised online accounts. The scheme also has a broader beneficial impact — it reinforces organisations’ accountability for personal information protection and encourages a higher standard of personal information security across the public and private sectors.

“By reinforcing accountability for personal information protection, the NDB scheme supports greater consumer and community trust in data management. This trust is key to realising the potential of data to benefit the community, for example, by informing better policy-making and the development of products and services.”

The 2017 Australian Community Attitudes to Privacy Survey found that 94 per cent of Australians believe they should be told if a business loses their personal information. Ninety-five per cent said they should be told if a government agency loses their personal information.

Organisations are required to notify the Australian Information Commissioner in addition to notifying individuals affected by an ‘eligible data breach’ (a data breach that is likely to result in serious harm). Failures to comply with the NDB scheme can attract fines up to $2.1 million.

The OAIC's new resources for the Australian public can be read online: www.oaic.gov.au/individuals/data-breach-guidance.

The OAIC has published a suite of guidance for organisations to assist them in implementing the requirements of the NDB scheme. This guidance can be found at: www.oaic.gov.au/ndb.

Background information

Previous statements from the Office of the Australian Information Commissioner

Mandatory data breach notification: https://www.oaic.gov.au/media-and-speeches/statements/mandatory-data-breach-notification

Enforcement powers of the Office of the Australian Information Commissioner

  • The Privacy Act confers a range of enforcement powers on the Commissioner, including:
    • accept an enforceable undertaking (s 33E)
    • bring proceedings to enforce an enforceable undertaking (s 33F)
    • make a determination (s 52)
    • bring proceedings to enforce a determination (ss 55A and 62)
    • report to the Minister in certain circumstances following a CII, monitoring activity or assessment (ss 30 and 32)
    • seek an injunction including before, during or after an investigation or the exercise of another regulatory power (s 98)
    • apply to the court for a civil penalty order for a breach of a civil penalty provision (s 80W).
  • The ‘civil penalty provisions’ in the Privacy Act include:
    • A serious or repeated interference with privacy (s 13G) – 2000 penalty units (current total is $420,000)
    • The maximum penalty that the court can order for a body corporate is five times the amount listed in the civil penalty provision (current maximum $2.1 million).
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