The brightest minds at the Association for Data-Driven Marketing and Advertising (ADMA) have said that the upcoming Privacy Act’s fair and reasonable test makes it “fundamentally” different from other privacy legislation.
A new version of the Privacy Act, first introduced in 1988, is expected to be introduced to legislators in August, following a five-year gestation period — during which time a terrified digital marketing industry has warned of its potential “nonsensical outcomes,” “unintended consequences” and even cautioned that it could “likely obliterate” marketing as a profession.
Now, however, the mood appears to have softened somewhat — though the proposed Act’s Fair and Reasonable test makes this legislation entirely unique.
In essence, organisations of all sizes must be able to prove whether an individual would reasonably expect their personal information to have been collected, used or disclosed; whether it was reasonably necessary to collect and use personal information and whether the the impact on their privacy was proportionate to the benefit they received.
The test even applies irrespective of whether the organisation has obtained an individual’s consent.
“Consent doesn’t matter. This is fundamentally why the Australian Privacy Act reform is different to [Europe’s] GDPR (General Data Protection Regulation) and even the US ones. This is something that hasn’t been seen around the world,” said Sarla Fernando, ADMA’s director of regulatory and advocacy.
Naturally, with a phrase as amorphous as “fair and reasonable” deciding the future of all Australian companies’ data practices — the small business provision looks set to be removed from the new Privacy Act too — there is plenty of uncertainty about how this will be interpreted and by whom.
“Lawyers, especially class action ones, may push people towards a certain opinion,” added Fernando.
In the event of a case being brought against a company, it is entirely likely that there will be months and years of back-and-forth over what is fair and reasonable — especially since the penalties have increased so dramatically.
However, Fernando said that many marketers aren’t taking the upcoming changes seriously enough.
“Just like cookie deprecation, the most common question is when is this coming into being? Marketers have so much to juggle right now they’re putting it off until later,” she explained.
“The other side of the coin is there are some businesses that think they’re completely compliant because they’ve gone through GDPR… But even if they’ve got the right consent, they’ve got the right consent for a certain amount of data. The scope has now expanded.”
Fernando added that many companies simply do not know how much data they’re holding and how long they’ve had it — the latter having potentially grave financial consequences under the new law.
ADMA’s new regulatory and policy manager, Rob Nicholls added that some marketers were trying to second-guess the final bill rather than getting ready for it.
“There’s another issue… over-reading the tea leaves. Minister Dreyfus said August back in May but then at the Press Club said this year. August is still this year. The risk of thinking ‘Oh well when he says this year, it probably means the last session before Christmas and so it won’t really pass the Parliament… until after the election!’ There is a real risk in doing that,” he said.
“Just assume it’s going through in August because if you’re making that assumption, you run the risk of not being able to comply once the legislation comes in.”
While marketers need to wake up to the pending changes, the ADMA team believe that they do not necessarily need to be scared of the new law.
“People want personalised advertising. If somebody asks do you want to be targeted? They might say not thanks. But if you ask if I want a fire hose of ads coming at you or would you rather have personalisation, well, I’d rather have personalisation. I don’t want to have looked up something once and have that creepily following me,” said Fernando.
“That is not necessarily regulation. That is us becoming better marketers. This is an opportunity when regulatory reform comes in, it is an opportunity to reset. And, just like in Formula One, regulation was a scary thing but regulation has evened the playing field, it made it a more interesting sport and made you innovate. It brings out the best in marketers. We’ve got to bring that to the forefront. Even the playing field. Help the regulators get it right and then the best will rise to the top.”
