Author: MIL-OSI Publisher

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When we use the metaphor ‘to come with clean hands’, it means to have done nothing underhand or illegal. It’s a term that applies in the context of resolving privacy disputes. There’s a general expectation that if you make a complaint to our office, you did not bring the breach of privacy upon yourself through your actions.

In a recent case, our complainant was a man who had ripped off a business. He had scammed the business out of several hundred dollars worth of goods but became upset when the business named and shamed him on its Facebook page.

Facebook post

The man claimed he had been left devastated after the business published information about him including photos of his driver’s licence, a bounced cheque, and one taken by a security camera of him at the business. The Facebook post attracted thousands of views and the majority of comments posted by readers were uncharitable to the man – to put it mildly – with many people referring to his colourful past and previous encounters with the law.

In his complaint to our office, the man said he lived in a small community and word quickly spread of the Facebook post. As a result, he and his family had to endure abuse from others in his community. He said his anxiety and depression hit a new low because of the Facebook post and online comments. The man said he wanted more than $50,000 in compensation from the business.

No cash or credit

When we contacted the business, the business owner explained the events that prompted the Facebook post. The man had arrived and wanted to purchase the goods but did not have the cash or credit to pay for them. He offered instead to pay by cheque and refused to leave without the products because he had driven four hours from where he lived. The man gave his permission for the business to keep a copy of his driver’s licence and to report him to Police if his cheque was dishonoured. The two parties came to an agreement that the man could take half the goods he wanted to buy and the rest would be sent to him after the cheque cleared.

The cheque bounced. The business tried many times to call the man’s mobile but the calls were not answered or messages responded to. When the business owner googled the man’s name, he discovered he was well known in his area for his scams. Within an hour of posting the man’s information on Facebook page, the business was receiving messages and phone calls from people wanting to share similar stories about the man’s past behaviour.

Apology

Later that day, the business received Facebook messages from the man’s son asking it to remove the post. The business owner said he would delete the post and withdraw his Police report, if the debt was paid. But hours later, even though no payment was received, the business owner took down the post. He then received a phone call from the man saying he would make an online payment if the business posted an apology. The business owner complied with an apology but still no payment arrived.

We asked the business owner what the grounds he relied on were for disclosing the man’s information on Facebook. Principle 11 of the Privacy Act says an agency that holds personal information should not disclose the information unless one of the exceptions to the principle applied. The business owner said the main exception he relied on was disclosure was necessary to lessen or prevent a serious threat.

Good faith

We didn’t agree. We were not satisfied the man’s actions met the definition of serious threat. However, while we were not satisfied the business could disclose the man’s information, we decided the man had not acted in good faith in dealing with us. He had not paid for the goods he had taken, nor did he return the goods. He also failed to provide us with evidence to assess whether or not he had experienced harm as a result of the Facebook post, despite wanting over $50,000 in compensation from the business.

We decided to close the file. Acting in good faith is an important part of participating in our complaints process. In our view, the man had fallen well short of engaging with us in an open, honest and transparent way. The Privacy Act is not a law that a person can game if you don’t come with clean hands and honest intentions.

Image credit: Clasped hands via Public Domain Pictures

complaints, Facebook, IPP11 – disclosure

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It is said that a sincere apology should include the three Rs – regret, responsibility and remedy. Why apologise and how to do it properly is a subject we’ve discussed before. But we continue to see apologies that fail to convince a complainant. So it’s something we thought we’d revisit in this post because the quality of an apology is an important part of our efforts to resolve privacy complaints.

As a recent case has shown, the sincerity of an apology can affect an agency’s bank balance by lessening the damages awarded. The Human Rights Review Tribunal noted in its decision in Raymond Keith Williams v ACC:

An appropriate and timely apology can be taken into account under s 85(1)(4) of the Privacy Act when considering whether the defendant’s conduct has ameliorated the harm suffered as a result of the breach of privacy.

The Tribunal noted that in AB v Chief Executive, Ministry of Social Development:

… an appropriate apology given at the right time is a matter that can be taken into account under s.85(4) of the Act in considering whether and to what extent the defendant’s conduct has ameliorated the harm suffered as a result of an interference with privacy. In this case, however, we think the apology came far too late to have been of any value in that respect.

In that case, the defendant took one year to acknowledge the breach and another year to apologise for it. The Tribunal considered the apology had no mitigating effect, describing it as having been provided at the “eleventh hour”, after proceedings had been commenced and was considered to be motivated by litigation concerns.

Referring back to Mr Williams v ACC, the Tribunal said:

The circumstances of the present case are the polar opposite in terms of speed, motivation and sincerity.

The apology cannot “erase” the humiliation, loss of dignity or injury to feelings caused by the interference with privacy. Nor is it a “get out of jail free” card. The question in each case is whether and to what degree the emotional harm experienced by the particular plaintiff has been ameliorated. While this is a fact specific inquiry, it can be said that ordinarily an apology must be timely, effective and sincere before weight can be given to it. It is not inevitable an apology, even if sincerely and promptly offered, will ameliorate the emotional harm experienced by the plaintiff. Much will depend on who the particular plaintiff is and the particular circumstances of the case.

The Tribunal awarded Mr Williams $7,500 in damages but it is clear in its reasoning that if ACC had not apologised in such a sincere and timely way, that sum would have been greater.

In another case, a recruitment agency expressed its sincere apologies and stated that the mistake it made was unacceptable, given that confidentiality is vitally important to the nature of its business. The agency also assured our office and the complainant that it had implemented processes to ensure that the mistake would not occur again. The complainant was satisfied and we closed the complaint.

In another example where an apology successfully resolved a dispute after the complainant asked for the apology to come, not from the agency itself, but directly from the person in the agency who breached her privacy. 

Making a sincere apology sounds straightforward but as we see time and time again, many apologies fail to express the three Rs – regret, responsibility and remedy. But getting an apology right could make it easier on everyone – the agency, the complainant and our office – and divert a complaint away from an expensive, time consuming process which ends with an unwelcome sting for your agency.

Image credit: Head of Odysseus via Wikipedia.

complaints, Human Rights Review Tribunal

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Source: MetService

Covering period of Wednesday 30th – Friday 2 May – Stormy conditions starting to impact New Zealand today will bring strong damaging winds, heavy rain and choppy seas over the next few days to various parts of the country. MetService has issued numerous Severe Weather Warnings and Watches.
 
North Island
 
Widespread rain is currently affecting many parts of the North Island, with some areas experiencing heavy downpours. These conditions are forecast to become more persistent and spread further across the island by this afternoon (Wednesday).
 
•  A Orange Heavy Rain Warning is in place east of Bay of Plenty, from 10am today valid until 3pm tomorrow.
•  Heavy Rain Watches have been issued for Bay of Plenty and Southern Wairarapa until Wednesday evening. Wellington is also on Watch from 6pm Wednesday until 3pm Friday.
•  Strong to gale-force winds are expected along the Wairarapa and Wellington coastlines, generating rough seas and wave heights of up to 7 metres on Thursday afternoon and a Heavy Swell Warning has been issued.
•  Strong Wind Watch for Auckland, Great Barrier Island, Coromandel Peninsula, and north of Hamilton in Waikato, from 7am to noon Thursday.
 
Conditions in Wellington over the next day and a half will be something to keep a close eye on, as a combination of wet weather, very strong southerly winds, and large waves are expected.
 
The winds are of particular interest. While Wellingtonians are no strangers to blustery days, this event stands out due to the unusually strong southerlies, with gusts of 130 km/h possible. This means that trees and structures that may be accustomed to very strong winds from the north may be more vulnerable to strong winds from the south, making them more prone to damage. These winds will also be whipping up large waves, which may impact travel along coastal roads on Thursday.
 
South Island
 
•  An Orange Heavy Rain Warning for the Kaikōura Coast and ranges plus areas of Canterbury north of Timaru, easing from 6pm Thursday.
•  Orange Road Snowfall Warnings for Porters, Arthur’s, Lewis and Lindis Pass are in force into Thursday.
•  An Orange Heavy Snow Warning for Canterbury High Country, south of the Rangitata River, in place from 9pm tonight (Wednesday) through to 9am on Thursday.
•  Yellow Strong Wind Watches for Buller, Grey, Westland, Nelson Lakes Districts (from noon today), and the Marlborough Sounds (from 6pm today through Thursday afternoon).
 
The South Island is currently experiencing cloudy and wet conditions, with more rain forecast through to Thursday.  For the eastern South Island, this could be a significant weather event, with large amounts of rainfall expected between today and Friday. For regions under Orange Heavy Rain Warnings, possible impacts include areas of flooding, slips, and hazardous driving conditions.
 
MetService meteorologist Kgolofelo Dube says, With the hazardous weather conditions approaching, we strongly encourage all New Zealanders to stay informed by regularly checking the MetService app or website, as well as updates from local Civil Defence and council channels.”
 
Friday looks to be a better day, with rain easing in most areas across the country. However, eastern parts of the North Island and the north-eastern South Island may still experience heavy rain and strong winds.
 
The good news is that by Saturday, more settled conditions are expected to return to most regions, although some areas may still see isolated showers.

Please keep up to date with the most current information from MetService at http://bit.ly/metservicenz