Privacy Commissioners: Black Holes & Collective Inaction

1. Asia-Pacific privacy Commissioners - Black holes & Collective inaction Graham Greenleaf Professor of Law, University of New South Wales 11 September 2003 See http://www2.austlii.edu.au/~graham/ for updates / details Parallel Session 6: " A Safe and Open Society: the role of privacy regulators"

2. 1 Two black holes: Reporting and remedies What evidence is there that Commissioners do their job? Arguably most important function: resolving complaints Is there accountability for public monies spent? ‘Black holes’: complaints go in, but what comes out? Outcomes of complaints - who gets a remedy? Reporting complaints - do we know what law they apply? 2 Regional standards and collective action What Asia-Pacific regional standards are developing? Are regional Commissioner providing sufficient input? Collective input from regional experts: the APPCC Overview

3. Sources of evidence available? √ Annual Reports - only public source examined 01/02; some 00/01 ? websites? - could extract from reported cases (have not) - should provide continuous data ? FOI requests? - ‘document’ available? (have not done) Only some jurisdictions considered Privacy Comms - Australia; HK; NZ; Canada Information Commissioners not considered - mainly access, some correction, some broader Black hole #1: Outcomes - Does anyone get a remedy?

4. 2001-02 Annual Report - no statistics! Complaints tripled with private sector coverage (611) AR contains summaries of 11 complaints, of which one resulted in $5000 compensation No statistics given of complaint outcomes at all 2000-01 AR included some outcome stats 133 closed complaints; uncertain % breaches found 9 cases in AR involved $52,000 compensation No information about other remedies No genuine s52 determinations in 15 years No appeal right; No substantive case on the Act ever before a Court for judicial review Outcomes - Australian PC

5. latest Annual Report 1999-2000 before new Act commenced (1/7/00) No statistics or complaint resolutions yet available under new Act Since 2000, about 20 cases to NSW ADT 7 decided as yet - 7 more than the Cth! AR 1999-2000 relevant to ‘non-IPP’ complaints, as they still apply 4 complaint resolutions summarised Outcomes - NSW PC

6. PC Annual Report 2000/01 (01/02 is similar) 789 complaints (up 39%); 68% vs private sector;14% vs government;18% vs 3rd Ps Over 50% allege breaches of DPP 3 (use) 52 formally investigated (14% of 531 finalised) 26 (50%) found to involve contravention of PD(P)O 10 warning notices; 12 enforcement notices - but no idea what actions required, or what results 4 referals to Police for prosecution but in 3 Police found insufficient evidence; one unresolved Not one HK $1 compensation paid under s66; any by mediation? A Rep does not say Outcomes - Hong Kong PC

7. ‘Will I get a remedy - and if so, what?’ is largely unanswered - evidence is not there Some evidence of the % of successful complainants Little evidence of what remedies result Compensation? - a few examples from Aus and NZ All of the PCs are below ‘best practice’ A systematic and comparable standard of reporting is needed Asia-Pacific PCs could develop standards Comparison - 4 PCs Annual Reports

8. Will I get a remedy? Evidence from Privacy Commissioners Annual Reports 2001/02(see web page for explanatory notes) √= yes; ?= can’t tell

9. For detailed criticisms of reporting practices: Greenleaf ‘Reforming reporting of privacy cases’ <http://www2.austlii.edu.au/~graham/publications/2003/Reforming_reporting/> Bygrave ‘Where have all the judges gone?’ (2000) European Commissioners were little better - improved? Why reporting of Commissioners is needed Few court decisions means Commissioners’ views in complaint resolutions are the de facto law Identifying non-compliance is more valuable (and difficult) that ‘feel good’ exhortations to comply Black hole #2: Publication of Commissioners’ decisions

10. Publication is possible Requires anonymisation in most cases Exceptions should not be the rule Adverse consequences of lack of availability Interpretation unknown to parties / legal advisers No privacy jurisprudence is possible Past remedies (‘tariff’) unknown Privacy remains ‘Cinderalla’ of legal practice Deficiences in laws do not become apparent Commissioners can ‘bury their mistakes’ Justice is not seen to be done Deterrent effect is lost No accountability for high public expenditure Publication - Importance

11. AnRep has a few small ‘media grab’ summaries No other mediation details published 1988-2002 Comm avoids making binding Determinations (2 1993, 1 2003) despite powers to do so Dismisses matters under s40 - publication not required Since Dec 2002, 14 useful summaries of mediations and determinations published on web 2x1993, 2x2002, 10x2003 Rate now is still only 1.25 per month Any Federal Court decisions would be on AustLII (but there are none of relevance) - no appeal right Publication - Australian P Comm (Federal)

12. Complaint summaries on website only to 1998 Only 6 (01/02) or 8 (00/01)overly brief complaint summaries in AnRep - about 0.5 per month No systematic reporting of significant complaints Cases before other tribunals AAB complaint summaries are in AnRep, but not on website; AAB cases not available on Internet No reporting of s66 cases in AnRep or website - There is only one such case Publication - HK P Comm

13. Av 2 per month (03) reasonably detailed mediation summaries on website Selection criteria uncertain Website gives few details of cases on appeal or their outcome; not available elsewhere on web; P Comm publishes occasional compendiums Overall, difficult for most people to get an overall view of the law Publication - NZ P Comm

14. Av 5 detailed PIPEDA case mediation summaries per month on website best practice of PCs, but not Info Comms Few Privacy Act cases on website, but usually 12 or so in AnnRep Summaries of cases before Courts are in AnnRep (but not linked to mediation summaries) - difficult to obtain overview Publication - Canadian PC

15. More reporting than 2/month (% goal) statistics on reported / resolved ratio Publicly stated criteria of seriousness confirmation of adherence in each AnRep Complainants can elect to be named In default, name public sector respondents; private sector respondents only exceptionally Report sufficient detail for a full understanding of legal issues, and the adequacy of the remedy Report regularly rather than in periodic batches 'One stop' reporting including reviews of Commissioner’s decisions Encourage 3rd-P re-publication + citation standards Publication - 7 recommendations

16. <http://www.worldlii.org/int/special/privacy/> Privacy & FOI Law Project = All specialist privacy and/or FOI databases located on any Legal Information Institute (LII) Current coverage (all searchable in one search) Canadian Privacy Commissioner Cases (WorldLII) Privacy Commissioner of Australia Cases (AustLII) New Zealand Privacy Commissioner Cases (AustLII) Nova Scotia FOI & Privacy Review Office (CanLII) Queensland Information Comm. Decisions (AustLII) Western Australian Information Commissioner (AustLII) Privacy Law & Policy Reporter (AustLII) Being added New South Wales Privacy Commissioner (AustLII) EPIC ALERT (WorldLII) Publication - A central location

18. A seach for ‘disclos* near medical’

19. There is no global standard One region (Europe) has successfully developed regional standards Council of Europe Convention 1981 European privacy Directive 1995 The Asia-Pacific is the next most advanced region in privacy protection Far less political and economic unity or uniformity Starting the most important international privacy developments since the EU Directive …. Part 2 - Regional privacy standards & collective action

20. APEC’s privacy initiative Chaired by Australia - US / Aust. initiative Asia-Pacific Telecommunity (APT) Chaired by Korea Asia-Pacific Privacy Charter Council A ‘civil society’ expert group FTAA will also affect some countries (Free Trade Area of the Americas) Toward an Asia-Pacific standard

21. Australia chairs a working group of 10 countries Starting point: OECD Guidelines (1981) 5 draft versions in 6 months Do not yet even reach OECD standards Only considering very minor improvements to OECD V2 strengthened V1, but V3 and V4 far weaker for little apparent reason (Serious US input coincides with V3) At best it offers ‘OECD Lite’ …. APEC’s privacy Principles - Progress or stagnation?

22. Examples of weak and outdated standards Based on Chair’s V4 (Aug 03) - now behind closed doors No objective limits on information collection (P1) No explicit requirement of notice to the data subject at time of collection (P3) Secondary uses allowed if ‘not incompatible’ (P3) OECD Parts 1, 3, 4 and 5 all missing as yet Farcical national self-assessment proposed (V1) Even OECD allows strong export controls Why start from a 20 year old standard? This would be laughable in other areas of law Most regional countries are not members Recognised as inadequate (eg Kirby J 1999) APEC’s ‘OECD Lite’

23. Look to actual standards of regional privacy laws Eg Korea, Canada, Hong Kong, New Zealand, Taiwan, Australia, Japan, Argentina Principles stronger than OECD are common (examples over) We need to adopt and learn from 25 years regional experience, not ignore it More input into APEC is needed from Commissioners and other experts to identity this standard Some individual PCs input is filtered through governments Regional PCs need a better collective role in APEC No equivalent yet to A29 Committee - provides protection Santiago (Feb 04) only offers input on implementation Asia-Pacific NGO experts are developing the APPCC The alternative: A real Asia-Pacific standard

24. Collection objectively limited to where necessary for functions or activities (HK, Aus, NZ - Can stricter) Notice upon collection (Aus, NZ, HK, Kor) Secondary use only for a directly related purpose (HK, NZ, Aus - Kor stricter) Right to have recipients of corrected information informed (NSW, NZ) Deletion after use (HK, NZ, NSW, Kor) Examples of high regional standards in Asia-Pacific

25. Asia-Pacific Telecommunity (APT) Agreement of 32 states via Telecomms ministries (etc) Guidelines on the Protection of Personal Information and Privacy (draft), July 2003 Drafting by KISA (Korea), with Asian Privacy Forum input Attempts to take a distinctive regional approach Explicitly not based solely on OECD or EU (cl8) Says OECD Guidelines ‘reflect … the 70s and 80s’ ‘Concrete implementation measures’ unlike OECD Allows more variation between States that EU Emphasises role of government, not litigation Adds new Principles in at least five areas … APT privacy Guidelines (draft)

26. Legislation required + self-regulation encouraged A privacy supervisory authority required Supervision and complaint investigation Data export limits may be ‘reasonably required’ to protect ‘privacy, rights and freedoms’; free flow of information otherwise required Limits on these guidelines only by legislation; only to the extent necessary for other public policies Common character string need to deal with spam APT Guidelines - implementation

27. No disadvantage for exercising privacy rights (A5(2)) Notification of corrected information to 3rd party recipients (A6(4)) ‘Openness’ of logic of automated processes (A7) No secondary use without consent (A 14(2)) Deletion if consent to hold is withdrawn (A16) Duties on change of information controller (A19) Special provision on children’s information (A34) Personal location information Principle (A30) Unsolicited communications Princple (A31) APT Guidelines - new Principles

28. Why are APEC and APT so different? Membership similar except for the USA US/Australia APEC initiative has a defensive and outdated starting point (OECD) Inadequate process: no collective expert input, and now behind closed doors OECD Guidelines were by an ‘expert group’ A more consultative, confident, and region-based APEC initiative is needed Conclusions

29. Asia-Pacific Privacy Charter Council See http://www.BakerCyberlawCentre.org/appcc/ 35 non-government privacy experts from 10 regional countries, and growing On 12/11/03, meeting to consider 1st working draft Headings of Principles under consideration for Charter are over - only a first draft Covers surveillance and intrusions as well as IPPs An attempt to develop a positive regional standard Coda: The APPCC - a regional expert initiative

30. APPCC draftPart I - General Principles

31. APPCC draft - Part II - Information Privacy Principles

32. APPCC draft - Part III - Surveillance limitation principles

33. APPCC draft - Part IV - Intrusion limitation principles

34. APPCC principles - Part V - Implementation and compliance principles