What Are Australia's New Privacy Policy Laws?

2012-01-25T01:37:00.001-08:00

The Commonwealth Government’s 13 proposed Australian Privacy Principles (APP), to be involved within a new Privacy Act 1988 (Cth), and will substitute the Information Privacy Principles (the IPP, which govern the Commonwealth public sector) and National Privacy Principles (or the NPP, which govern private sector conduct). The Cabinet Secretary responsible for drafting the new laws, Joe Ludwig, states that the individual’s privilege to privacy is a ‘fundamental human privilege that must be safeguarded’. As a result, the actual legislation will be amended with the following objectives in mind:

The two present sets of principles (the IPP and NPP) will be replaced by a single, structured and harmonised range of requirements that draw on the existing principles; That the Principles should signify a balanced set of criteria to deal with potential risk of damage from incorrect sharing and addressing of an individual’s personal information; To make certain that the requirements also take into account an individual’s realistic targets around the treating of their information; and To ensure that the restrictions strike a balance between the Public’s and the individual’s interest in productive, effective service delivery and public protection.

Then again, website terms and conditions are generally not the very first thing you examine when browsing an online site, realistically most people never look at a website’s terms and conditions unless encountered with a dialogue box needing their acceptance. However having a page of terms and conditions in addition to a privacy policy is crucial to the successful performance of your website or online business. In 2009 the ACCC began a crackdown on the websites of online stores who “simply ‘cut and paste’ information from other sites on warranties and refunds without examining that the facts are correct”, to quote the ACCC chairman Graeme Samuel. The ACCC properly pursued the large online retailer DealsDirect over warranty terms on their goods that have been in breach of the Trade Practices Act 1974 (Cth). The corporation was forced to change its website terms and conditions in accordance with a court order.

While problems with the previous Trade Practices Act 1974 (Cth), now the Competition and Consumer Act 2010 (Cth), are limited to websites selling goods or services, every website needs terms and conditions as other laws will affect them. For example you may need to minimize the ways in which end users can use your website’s content; this will only be enforceable if your terms and conditions adhere to the normal and statutory laws of contract, and the Copyright Act 1968 (Cth). Here are some areas to consider when composing website terms and conditions: What does your website supply? Every website is unique and will therefore need a unique set of terms and conditions. Websites can usually be divided into the sets of providing information, product and/or service sales, and those allowing user generated content. It is vital to sort out what it is your website is presenting and draft your terms and conditions accordingly.

For instance an online site enabling end users to obtain products and/or services requires terms about distribution, warranties, a returns policy, and to make sure such terms and conditions do not go against the provisions of the Competition and Consumer Act 2010 (Cth). Websites allowing user generated content needs to have terms explaining who carries legal responsibility for the content, and techniques for coping with offensive content. Any website will also have to explain the conditions upon which consumers can use website content and features, and to understand what uses of original content are permitted under the Copyright Act 1968 (Cth). One size does not fit all, and merely copying and pasting the terms and conditions of another website to your own means you are left with a policy that does not match your website’s content and operations - a difficulty that may have legal implications like it did for DealsDirect.