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12 Common Issues with Privacy Policies

12 Common Issues with Privacy Policies

12 Common Issues with Privacy Policies

1. Thinking a simple privacy policy template will do the job

For many small business owners, protecting the privacy of personal information just isn’t a priority. There are lots of reasons for that.

  • Not placing any value in a privacy policy or the protection of personal information
  • Not knowing what makes up personal information
  • Not realising when the business is collecting personal information
  • Not understanding what the business is doing with personal data after its collected
  • Thinking that publicly accessible data, like through Facebook or a website, means its ok to collect it
  • Not understanding the difference between privacy and confidentiality, or the importance of privacy
  • Having competing priorities – like the need to make money – that mean privacy always sits on the back burner

A template might work. It might not. If you never read it or attempt to understand it, it probably won’t help your business meet its legal obligations.

I have heard of a company that copied and pasted their privacy policy from a crematorium, without having read it. One of their customers pointed out to them that it was a little weird to read about burial when that wasn’t their business.

Are you prepared to put your credibility at risk?

If you don’t know what your obligations are, how do you know a simple template will protect your business?

2. Copying and pasting a policy from somewhere else

It is easy to check out a friend’s website or a competitor’s website and decide to simply copy and paste what they have done. A friend might even offer it. The problem with getting help from friends like that is that they probably don’t understand their own privacy policy or the legal impact it can have on your business.

I’ve even come across a business spruiking a service of theirs offering advertising through Facebook that simply linked the privacy policy of a random website they did not have any control over, not having read it, understood it or worried about the promises they were making by using that privacy policy and simply seeing it as a ‘hurdle’ to overcome to get their adds showing in as many feeds as possible.  That is potentially misleading and deceptive conduct offending both privacy law and consumer law.

If you haven’t read it or don’t understand it or are looking at a website from outside your country, don’t put your business at risk by copying and pasting a privacy policy from someone else’s website.

3. Thinking a cookie policy covers privacy obligations

Having a cookie policy or a cookie choice pop up on your website doesn’t meet your obligations to protect the privacy of personal information.

Cookies may not be classified as personal information. Cookies can be functional (you won’t get full use of the website without them), performance focused (like analytics), focused on personalisation (like advertising based on your search history), or marketing focused.

Cookies are little data packets that store enough information to identify you when you return to a site for the purpose of say, pre-filling your username or password, or adjusting the display of a website, or advertising to better reflect your preferences. Cookies have to be matched with other data before they can be used to identify you and the information stored is not generally available for inspection. Cookie data may be collated to create a picture of who you are.

There was a ‘horror’ story that went around some years ago about a pregnant teenager being discovered by her family because her search history meant her parents got served advertising for pregnancy help.  The cookies didn’t identify her, but enable her parents to put two and two together.

Personal information is information about an individual which by itself identifies that individual, or with other information can be used to identify an individual. Types of personal information can include:

  • photo
  • name or alias
  • postal, street or electronic address
  • enrolment in a course
  • testimonial
  • biological samples
  • genetic data

So, a cookie pop up by itself just won’t cut it.

4. Never reading your own privacy policy

If you don’t know what your privacy policy says, how can you possibly be implementing the protections necessary to protect the personal information you are collecting?

How many businesses do you know have a blank page when you click on the privacy policy link in the footer of their website? Clearly they missed checking what was supposed to be written on that page. Your web developer or tech person is not responsible for you meeting your privacy obligations. They probably know marginally more than you do about your privacy obligations, are not lawyers and shouldn’t be uploading just anything for you.

5. Not understanding your own privacy policy

Privacy obligations only apply to information about real people – whether in their personal or business capacity – but do not apply to companies or other entities. Depending on where you are in the world, privacy obligation may also be limited to people who are still alive, and not the deceased.

So, what do you do with the personal information you collect? Unless you use integrated technology, you probably have data about your clients and supplies in a variety of places:

  • your CRM
  • your finance software
  • your email marketing software
  • your email management system
  • a project management tool
  • other software used in your business

Whilst the problem of keeping information consistent across databases is widely acknowledged, the type of protections each of those systems offer, and how you use them, probably isn’t.

For many types of businesses, your privacy obligations mean that you can’t send data overseas without the consent of the person providing it. This is particularly so for financial or health data. Personal trainers, life coaches, psycho-therapy providers all collect health data and probably don’t realise that every email they send pushes personal information overseas.  

I’ve also gone to privacy policy links on websites that don’t cover privacy at all, and in fact display the e-commerce terms of that business instead, which perhaps a throwaway line saying “we respect your privacy and will never sell your personal information.” That is not a privacy policy.

6. Not considering any procedures to support your policy

When you run a small business, the people who work with you, employees or contractors, need to understand your priorities around personal information and what can and cannot be done with it.

Do you allow contractors to keep contact details on their mobile devices outside your systems?

What controls or oversight do you have over what they are doing with their mobile device each day?

How many times have you seen parents hand a mobile device to their child to keep them quiet or entertained? Do you know the personal data of others isn’t being accessed?

For businesses in Australia which are obliged to comply with the Privacy Act 1988, there are now also mandatory data reporting obligations so that if any data is lost or accessed, it needs to be reported. Leaving a device on public transport can be a reportable event if that device cannot be remotely locked and contains any personal information that is supposed to be controlled by your business.

7. Not knowing where you are collecting data or what you are doing it

We’ve spoken with many small business owners who simply don’t realise how often or in what way they are collecting data.

  • a form filled through a website
  • an email received
  • a video conference recorded
  • a note made of a telephone conversation
  • a voicemail received
  • video feedback recorded and sent by a client
  • patient notes written and yet to be filed

All these examples involve the collection of personal information. Does your business have protocols in place for the destruction of information that is no longer required for the purpose of your business? Privacy law generally requires that you only collect what is necessary, and destroy it after it is no longer required. Interestingly, many large organisations, like banks, appear to keep your information indefinitely.

The GDPR (regarding information about EU residents) now requires that you monitor what you collect, how you collect it, and how long you keep it.

We can help you put together policies to assist people in your workplace to manage how information is collected, stored, used and destroyed.

8. Not updated to match data practices

Laws are changing all the time. If you haven’t looked at your privacy policy for more than two years, it is probably time you did.

Not only that, but if you’ve changed the software or technology you are using recently, that should also prompt a review of not only your privacy policy, but also the privacy policy of your new software or technology provider.

You might be offering a new product or service that means you collect additional information from your clients, more than you did previously.

You might have started working with another business in a joint venture, which means they now have access to some of your personal information, and vice versa.

Take time to review your practices and procedures for managing personal information and privacy, as well as checking that you are legally compliant with your obligations.

9. Doesn’t address all the different people affected – customers, partners, developers, general users

You may or may not treat personal information from different relationships in the same way. By relationships, consider the different people you interact with in your business – your clients and customers, your suppliers, your employees and contractors, volunteers, etc.

Consider: if you still have a business that uses paper forms, you might have collected similar or only slightly different data on different forms. You might scan that information and store it electronically, but then what happens to the paper copy? Is it securely destroyed? Is it stuck in a filing cabinet somewhere? Is that filing cabinet locked? Is any member of staff able to access that filing cabinet?

Do you have forms to be filed sitting on someone’s desk without any security or privacy around that information?

Do you have phone numbers written on a white board that can be seen from outside your office? This happened on a morning TV cross to a bank financial data room.

You might have a list of supplier details stuck on a wall, or a piece of paper near the computer.

If you treat the personal information you collect about different groups of people differently, all those scenarios need to be covered.

10. Hiding the terms

If your business has privacy obligations, you should share how you meet those obligations with the people whose data you collect. So, if you have employees, you should have an employment policy around how you manage their personal information.

If you have customers, you should have a policy about how you manage their personal information and what you do with it.

The easiest way to share a privacy policy with customers and suppliers is through your website and the convention is to have a link to that policy in your website footer.

A link to a blank page is not helpful.

11. Wrong laws or no laws

A contract came across my desk the other day between two Queensland, Australia based small businesses. Goodness knows where they got it. The agreement was four years old and mentioned the laws of Ontario, Canada as the governing law. No, no, no, no. Not helpful at all!

If you copy and past a privacy policy from someone else there is a risk that you have inadvertently referred to laws that don’t even apply to your business. Like COPPA, the Children’s Online Privacy Protection Act which is law in the United States. Reference to that law in another country is likely to be inaccurate and potentially misleading, or create obligations in your business that never actually existed until you voluntarily assumed them.

If you’ve copied something from overseas, it is also possible that you’ve not complied with the laws that do apply to your business, putting your business at risk.

Although there are certainly some similarities in obligations in different countries, law is not universal and there are often inconsistencies within countries, particularly federated countries, as well as between countries.

Make sure you are undertaking to comply with the laws that apply to your business.

12. Hard to read – legalese or no whitespace

Lastly, don’t make your privacy policy so hard to understand that people don’t or won’t read it. If you write for the comprehension level of a child of around 12, then most people who read your privacy policy, whether customers, suppliers or staff, will understand it.

You shouldn’t need a post-graduate degree to make sense of what has been written. It doesn’t help your business or anyone else you deal with. Back in 2019 The New York Times did an article about readability and found that Facebook’s then privacy policy was more difficult to read than Stephen Hawking’s ‘A Brief History of Time’. Don’t be that business.

Simply headings like:

  • How we collect your personal information
  • What we do with your personal information
  • Where we store your personal information
  • Your rights regarding the personal information we have collected about you

All make it easier for someone reading your privacy policy to make sense of what it is you do to help protect them. Short sentences, simple words, easy to follow headings, pleading of white space, all aid understanding.

If you are not sure, get a child you know to read your privacy policy out loud and ask questions about anything they don’t understand. If they stumble over a sentence, or have loads of questions, go back to the drawing board.

How can Onyx Legal help you?

If you’d like help reviewing or updating your privacy policy, or perhaps having one tailored to fit your business and your business processes, sent an email to advice@onyx.legal with a link to your policy (if you have one) and let us know what you’d like to achieve.

Privacy Policy: Collecting and Managing Personal Information

Privacy Policy: Collecting and Managing Personal Information

Privacy Policy: Collecting and Managing Personal Information

Privacy Policy: Collecting and managing personal information

As a business owner, how many times a day do people give you their personal information? Do you think about protecting it, or do you just assume that the systems you have in place will do that? 

Or maybe you don’t think about it at all. 

Does a small business need a privacy policy?

You must comply with Australian privacy laws unless you run a small business with $3 million or less annual turnover. However, you will still be bound by privacy law if your small business does any one of the following:

  • are a credit reporting body (e.g. Equifax, Illion) or
  • are a contracted service provider under a contract with the federal government; or
  • provide a health service or otherwise hold health information (e.g. health practitioners, life coaches, personal trainers, childcare centres); or
  • collect or disclose personal information for a benefit, service or advantage (e.g. operating a lead generation website where you sell the leads).

If you have any customers or suppliers overseas and you collect their personal information, you may now also have to comply with what are called ‘extra-territorial’ provisions of laws from overseas. For example, if you have customers in the European Union, you are required to comply with the General Data Protection Regulation (GDPR), regardless of the size of business. If you have a medium enterprise with customers in California, you now must consider the California Consumer Privacy Act (CCPA).

Some other countries with privacy laws that have an extraterritorial scope include New Zealand, Brazil, Thailand, the Philippines, and Canada.

 

From a practical perspective, can not having a privacy policy really make a difference?

Apart from the legal obligations, there are practical consequences of not having a privacy policy too.

If you want to advertise on social media, or through Google Ads or other platforms, you are required to provide a link to a privacy policy before your advertising can go live.

A lot of international service providers include in their terms and conditions that you must comply with privacy laws to use their services, and they have the right to end your ability to use their services if you don’t.

For example, if you use PayPal you agree with the following terms of the PayPal User Agreement:

You must comply with all your obligations under applicable Australian consumer law, including as a seller by publishing a refunds and returns policy as well as a privacy policy, where required by law.

… you must not: Infringe PayPal’s or any third party’s copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy.

…To the extent that you (as a seller) process any personal data about a PayPal customer pursuant to this agreement, you agree to comply with the requirements of any applicable data protection laws. You have your own, independently determined privacy policy, notices and procedures for any such personal data that you hold as a data controller, including a record of your activities related to processing of personal data under this agreement.”

What difference would it make to your business if you couldn’t process payments through PayPal?

 

So, what is the point of a privacy policy?

One of your many obligations under Australian privacy laws is that every time you collect personal information from an individual, that person must be able to find out why you are collecting it, and what you are going to do with it.

Posting a privacy policy that you understand and know you can apply, on your website where it is easy to access, is by far the easiest way to share with people what you are doing with their personal information.

 

So, what is personal information?

Under the Privacy Act 1988, personal information means any information or opinion about an identified individual, or an individual who is reasonably identifiable:

  • whether the information or opinion is true or not; and
  • whether the information or opinion is recorded in a material form or not.

And what does that really mean?

Well, for a start, it doesn’t cover information about people who have died, which is interesting considering the legacy profiles some social media platforms are now making available for the families of the deceased, but that is not the topic for today.

It does cover information you collect about your employees and contractors. Many businesses only think about customer information and forget that you also have to protect the privacy of employees, contractors and suppliers.

But what about a practical example:

Imagine a gym where someone is leaving and their trainer turns to another trainer and says something like “She’s never going to lose weight, you should see her mum, she just has fat genes”.

The comment is verbal, it’s an opinion, it refers to a person who can be identified visually, and whose name and other details could be found by looking at the trainer’s schedule. That makes it personal information.

Is there a risk of violating privacy law – Yes. Is it likely to be a big risk to your business? – No. Why not? – Because it probably wasn’t recorded and is therefore difficult to prove, but if another patron overheard it, or the trainer repeated it to someone else, it does start a chain of infringement.

Imagine the same gym has list of all their trainers with their phone numbers on a clip board, and that clipboard gets left on the front reception desk, where anyone coming in could take a quick photo with their phone.

Is there a risk of violating privacy law – Yes. Is it likely to be a big risk to your business? – Possibly. Why? – Because once that information is recorded in a different form, like a photo, your business has disclosed personal information without permission.

Can you see why it is important to understand what you are doing in the process of collecting personal information?

 

When are you ‘collecting’ personal information?

You collect personal information in your business all of the time.

Any time you confirm someone’s name over the phone, whether or not you write it down.  Every time someone fills in a contact form on your website. Every time you add someone’s details to a database. Every time you prepare a proposal for someone or take payment details. Every testimonial. These are all examples of collecting personal information.

This is a broad concept.

It includes getting personal information from any source and by any means, such as the people themselves, social media profiles, other businesses, or even surveillance cameras. In practice, all personal information that you hold will generally be considered information that was collected by you.

Bear in mind that if you generate personal information from some other data you hold, collection may also take place. For example, if you generate a sub-set of information from your database for promotional purposes, you’re effectively collecting that information again. And the practical consequence? – Your privacy policy and procedures should be broad enough to include that kind of activity in what you do with personal information.

How should you manage personal information?

This is where a lot of people get lost and think that having a privacy policy by itself is a cure for all ills. It isn’t.

You are required to manage the personal information you collect in an open and transparent way. What this means is that you must take reasonable steps to establish and maintain internal practices, procedures and systems for your business to ensure its compliance with privacy laws.

Do you have any sort of privacy checklist for small business to help your team navigate what they can and can’t do with personal information? If not, that is a good place to start. What is considered as reasonable would depend on your business.

Think about what type of personal information your business holds, how much information you collect, how your customers might be affected if their personal information was not handled properly, the size of your business, and the time and cost involved in implementing appropriate procedures.

What you are required to do in Australia is comply with privacy law to a degree that is commercially proportionate to your business. So, if you run an online marketing agency with a team of four people, your procedures are not likely to be as complex as a business supplying services to the defence force.

Here are some examples what you could consider implementing:

  • understand what privacy obligations you have as a business;
  • work out when you collect personal information, and why (avoid collecting more than you need for your business);
  • work out what you will do if someone wants to be anonymous, and if you can still deliver products or services if you allow that;
  • work out where you store personal information, and how you use it (do you use a commercial database, or excel, or your phone contacts list?);
  • work out if you share personal information (eg. with a distributor or courier service);
  • decide whether the systems and procedures you use in your business protect, or put personal information at risk of being disclosed, lost or stolen (eg. leaving a mobile phone in an Uber);
  • check that you have faith in the online systems you use and there is limited risk of unintentional access by someone outside your business (eg. information on a white board visible when you are on Zoom, unintentional disclosure of a Google form);
  • work out what you will do if you get a complaint from a customer about the use of their personal information;
  • work out what you will do if someone asks you for a copy of their personal information, or a change to that personal information (eg. change of name or address);
  • include privacy training as part of your induction process for new staff; and
  • annually review and audit your business’s privacy practices, procedures and systems.

 

How do you write an effective privacy policy?

Your next step then is to write a clear and up-to-date Privacy Policy about how your business manages personal information, or get us to prepare it for you. At a minimum, it must contain the following:

  • the type of personal information that you collect and store (eg. contact details, educational qualifications);
  • how you collect and securely store personal information (eg. collect directly from your customer and their public social media accounts, then add to a CRM);
  • the purpose for collecting, keeping, using and disclosing personal information;
  • how your customers can access and correct any their personal information and who to contact in your business;
  • how your customers make a complaint about a breach of privacy laws, and what happens when they do; and
  • whether you are likely to disclose personal information to overseas recipients, and if yes, the likely countries.

Your Privacy Policy will be more comprehensive depending on the complexity of your business and should be tailored to match your internal systems and procedures. A well-written, easy-to-understand Privacy Policy can add to your credibility and help build rapport with your customers.

If your Privacy Policy is made available online, you can provide a condensed version to outline key information, but a direct link to the full policy must be provided.

 

What if you get it wrong?

Privacy law is regulated by the Office of the Australian Information Commissioner (OAIC). The Commissioner can require your business to put in place systems, procedures or training, pay compensation, or apply to the court for fines to be made against your business.

Compensation is usually ordered where information has been disclosed, or where a person has requested access to their information, and it hasn’t been provided in a timely manner.

 

Protect your customers and your business

Having the right systems and procedures in place with a clear and comprehensive Privacy Policy is your opportunity to reassure your customers that you can be trusted, that you are aware of and care about their privacy and information security. In doing so, you are not only complying with your legal obligations but are also working towards building a reputable business. 

5 Tips for Managing Privacy Online

5 Tips for Managing Privacy Online

5 Tips for Managing Privacy Online

Protecting the privacy of your customers and clients online doesn’t have to be complicated. Admittedly, if you attract the attention of hackers you could run into trouble fast (just ask Ashley Madison).

Here are 5 simple tips about privacy online to help you meet compliance with Australian Privacy laws, and give your clients the confidence to share their details with you. And it’s not just online. If you’re collecting personal information anywhere in your business it should be protected and handled in a way that is consistent with your privacy policy.

How can Onyx Legal help you?

Joint ventures have a contractual foundation.
You can form a joint venture with a handshake, or you can put a little thought into your expectations and negotiate an agreement that clearly sets out each party’s rights and obligations, as well as exit opportunities. We also highly recommend incorporating sensible dispute resolution mechanisms that will support the joint venture moving forward. If you are already in a joint venture, we can review the contract and clarify any legal rights and obligations you don’t understand.