We explain the basic principles of the Privacy Act.
The Privacy Act sets the boundaries for our right to privacy. We explain its basic principles and describe the complaints process.
The Privacy Act 2020 deals mainly with the collection and disclosure of personal information. It’s more about information privacy than other aspects of privacy.
The act has 13 principles that stipulate how information can be collected and used, and people’s rights to gain access to that information and ask for it to be corrected.
An agency may only collect personal information where it is needed to perform a function or activity of the agency. The collection of the information must be necessary for that purpose.
The agency must collect the information directly from the person concerned. There are exceptions: for example, where the person agrees otherwise, or where the information is publicly available.
The agency must take all reasonable efforts to ensure the person is aware information is being collected, what it will be used for, the recipients of the information, whether the supply of the information is voluntary or mandatory, the consequences of not providing it, and the person’s rights to access and correct the information.
Personal information must not be collected in an unlawful, unfair or intrusive fashion. Businesses and organisations that collect personal information from children or young people must consider if the way they collect the information is fair in the circumstances.
The agency must ensure the information is protected against loss, misuse or unauthorised disclosure.
Where the information can be readily retrieved, the individual is entitled to confirmation of whether the information is held, and to access it. There are exceptions: for example, where disclosure would prevent detection of a criminal offence, or would involve a breach of someone else’s privacy.
Individuals may request correction of information held. Where this is not agreed to by the agency, the individual may request the information is tagged with a statement that the correction was sought and refused.
The agency must not use the information without taking reasonable steps to ensure it is accurate, up-to-date, complete, relevant and not misleading.
The agency must not keep the information for any longer than it is needed for the purposes for which it was collected.
Information collected for one purpose must not be used for any other purpose. There are exceptions: for example, where the agency reasonably believes the individual has authorised the further use, or that the information was from a publicly available publication.
The information must not be disclosed except in certain situations. These include where the disclosure is directly related to the purpose for which the information was collected, where the source of the information is a publicly available publication, and where the disclosure is authorised by the individual concerned.
Personal information may only be disclosed to organisations in other countries where there are similar protections to those in the Privacy Act. There are exceptions: for example, if the individual concerned is informed that their information may not be protected and expressly authorises the disclosure anyway.
An agency must not assign a unique identifier to an individual unless doing so is necessary for the agency to carry out its functions efficiently. Where doing so is necessary, agencies must not use a unique identifier that has been assigned to that individual by another agency (the only exception is for certain taxation purposes). Agencies must take reasonable steps to protect unique identifiers from being misused.
The act covers government agencies, local councils, businesses and individuals. There are some exceptions: for example, the news media, members of parliament, the Governor General, ombudsmen and the courts are not covered by the act.
The act doesn’t just apply to clients and customers – all personal information is covered, including information about employees. All organisations are required to have a privacy officer to deal with privacy issues.
It’s important to note that information such as a telephone number, physical address or an email address is not necessarily “personal information”, unless it’s linked to other information that means an individual becomes identifiable.
The act also has extraterritorial effect. This means overseas companies conducting business in New Zealand, such as Facebook and Google, are subject to it and have to report data breaches if they involve New Zealanders’ information.
The Privacy Commissioner provides advice and education on privacy, investigates complaints, evaluates new legislation that may impinge on an individual’s rights, reviews data-matching programs and issues codes of practice.
Codes of practice cover specific industries, agencies, activities or types of personal information. Codes often adapt the provisions of the act to a particular circumstance, group of organisations or type of information.
Two codes that most affect the lives of consumers are the Credit Reporting Privacy Code and the Health Information Privacy Code. Information about both these codes is on the commissioner’s website.
The commissioner can also issue compliance notices requiring organisations to comply with the act, as well as binding decisions on complaints relating to access to information.
Organisations that fail to report serious data breaches to affected individuals and the Privacy Commissioner can be fined up to $10,000. Breaches must be reported if they cause, or have the potential to cause, “serious harm” to individuals.
It is a criminal offence to mislead an agency to gain access to someone else’s personal information or have it altered or destroyed. It is also a criminal offence to destroy personal information knowing that a request has been made for that information. The maximum fine for these offences is $10,000.
The privacy principles in the act aren’t enforceable in court. An aggrieved individual must make a complaint to the Privacy Commissioner alleging an “interference with privacy”.
There is an important exception – principle 6 (Access to personal information) is enforceable in court if it relates to personal information held by a public sector agency.
A breach of a principle or code of practice is an “interference with privacy” if, in the opinion of the Privacy Commissioner, the breach reaches the legal threshold. “Interference with privacy” is a legal term that involves two aspects. First, there must be a breach of the law and second, there must be some harm that arose from it.
The Privacy Act can’t override other acts that authorise or require personal information to be made available.
Where it comes into conflict with the provisions of another act, the other act takes precedence. For example, schools must work within the Education Act. If the Privacy Act conflicted with the Education Act, the Education Act would override the Privacy Act.
If you feel your privacy has been breached, ask to speak to the privacy officer of the organisation concerned.
If you don’t get a satisfactory response, you can complain to the Office of the Privacy Commissioner (OPC). The office may ask you to fill out a complaint form. The form asks how you think your privacy has been breached and which principles or rules have been breached.
The OPC will investigate your complaint and form an opinion as to whether the breach is an “interference of privacy”. If your complaint has substance, the OPC will attempt to secure a settlement through mediation.
If your complaint is unable to be settled, the OPC can refer the complaint to the Director of Human Rights Proceedings. The director considers whether proceedings can be brought and if so will act for the plaintiff.
An individual can also initiate proceedings in the Human Rights Review Tribunal if the director doesn’t consider the claim has substance. If the tribunal believes there is an “interference” with the privacy of an individual, it’s able to grant a range of remedies and award damages up to $350,000.
If you’re still dissatisfied, there is a general right of appeal to the High Court.