On 8 May 2017, the Australian Government’s Productivity Commission released the Data Availability and Use Report which included a recommendation for the introduction of a “Comprehensive Right” enabling consumers to access their consumer data. A full copy of the report can be found here: Data Availability and Use Report.
Background to the Report
Mass digitisation of data and the capacity to collect data through everyday internet connected devices such as computers, sensors and cameras means that the collection, storage and transfer of data, and who owns it, is no longer a clear-cut issue. The Product Commission’s Report recommends that consumers should be able to access their consumer data, arguing that this will also benefit businesses through improved operational processes and productivity. The innovative use of data is increasingly becoming critical to making incremental improvements to businesses, allowing those businesses to offer services that are more customised, coordinated or timely. However, a reluctance to let consumers access their personal data has been criticised for inhibiting these positive effects.
The Productivity Commission has recommended that a new Data Sharing and Release Act be adopted which would provide members of specific industries with the ability to determine what data forms the ‘consumer data’ that is relevant to their industry and to establish mechanisms necessary to approve a consumer’s request for access to their personal data.
Consumer data includes:
personal information (as defined in the Privacy Act 1988 (Cth)) that is in digital form;
files posted online by the consumer;
data created from customers’ online transactions, internet-connected activity or digital devices;
data purchased or obtained from a third party that is about the identified consumer; and
other data associated with transactions or activity that is held in digital form and relevant to the transfer of data to a nominated third party.
The Report recommends that there should be a 12-month transitional period following the assent of the legislation to allow data-holders to adapt their systems to facilitate access to consumer data.
Consequences for businesses
The Comprehensive Right is proposed to be afforded to both individuals and small and medium-sized businesses. However, it would only apply to digital data holdings and therefore businesses with paper records would not be required to digitise their records to supply a consumer with data. Additionally, businesses should note that where they convert records for their own purposes into digital form, this information may also potentially become consumer data.
Restrictions on the Comprehensive Right
The Report proposed that the ACCC be given broad powers to handle oversights and complaints in relation to the Comprehensive Right, including the approval and registration of industry data-specification agreements and standards. However, the Commission rejected the notion that this data sharing should be regulated by Privacy regulators, as privacy is just one aspect of data use – not the main purpose.
At this stage, the Comprehensive Right is a proposal only but, consistent with other recommendations by the Productivity Commission, these reforms may soon be adopted by Parliament. We will keep you updated of further developments in this space.
For further information on these reforms and how they may affect your business, please contact Anand Sundaraj or Alison Mackey.
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