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Pieter, a visitor from Belgium, witnessed a car accident in a remote area. The accident left a young woman unconscious and seriously injured. Pieter acted quickly and phoned the emergency line from his mobile phone to get help to the woman as soon as possible.

However, Pieter was in shock and was unfamiliar with his surroundings, so he was unable to tell the 111 call taker exactly where he was. Pieter was able to describe a few of the landmarks around him – a small bridge and an interesting grove of Kauri trees – but he couldn’t recall the road name or the nearest town. With only vague descriptions to help them, the Police and ambulance experienced significant delays locating the scene of the accident. As a result, they were delayed in reaching the young woman who remained in pain for some time.

This is an alarming story but one which has repeated a number of times in New Zealand, due to the unavailability of timely and accurate information about the location of mobile emergency callers.

New system

In response to these concerns, the Ministry of Business, Innovation and Employment, after researching various options, has developed a system suitable to NZ conditions that will generate location information on mobile callers and make this available to the emergency services on 111 calls. The Privacy Commissioner proposes to amend the Telecommunications Information Privacy Code to create a clear and lawful basis for this system.

The new system enabled by the amendment will involve the gathering and sharing of automated location information – either directly from a caller’s mobile phone if they have an enabled device, or in the form of a report generated by the network operator showing the nearest cell tower to the caller. Access to this information, in real time, will help the emergency services to locate a caller and thereby an incident.

In Pieter’s case, his mobile phone could have sent location information to the system which would have provided the 111 call taker with his coordinates. With this system in place, it would have mattered less that Pieter could not recall the road name or nearest town. The emergency services may have reached the accident sooner.

Submissions invited on amendment

The proposed code amendment recognises that this information sharing serves a very important public good. Systems similar to this operate in other countries, and there is a general consensus among telecommunications and privacy regulators overseas that this is beneficial to individuals and the public more generally. Public confidence that location information is properly protected is important, and so the amendment sets boundaries on the use and retention of the location information and requires the agencies involved to be as open and transparent as possible about the system.

We’re seeking the views of the wider public on this proposal, to make sure we’ve got the balance right. Click here to view the proposal and email your submission to submissions@privacy.org.nz by 23 December 2016. 

Image credit: In case of emergency sign.

Telecommunications Information Privacy Code (TIPC)

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As a result of a complaint, Police began an investigation into a woman who worked at a district health board. The complaint alleged that she may have accessed DHB health records in order to locate children who had been the victims of crimes committed by her brother.

In the investigation, Police disclosed sensitive personal information about the woman’s brother to the woman’s employer. The woman complained to our Office, and subsequently took her case to the Human Rights Review Tribunal, claiming there had been an interference to her privacy.

The matter had become a Police investigation after someone claiming to be the woman in a letter attempted to contact the children through the school they attended. The family were living at a secret address because they were fearful for their safety. Police suspected the woman might have tried to contact the children on behalf of her brother.

The police officer assigned to the investigation contacted the woman’s manager at the DHB where she worked. He disclosed detailed background information to the manager including information of the woman’s brother and his convictions for child sexual and physical abuse, and earlier convictions for possession of child pornography.

The police officer suspected the woman may have committed an offence under the Crimes Act 1961 – if she had inappropriately accessed the National Health Index (NHI) database through her role at the DHB to try and locate the family members.

The woman complained to our Office because the information disclosed by Police to her employer about her brother’s convictions had caused her hurt and humiliation. She said she should have been told first, and Police should have had a search warrant or production order to get her employer to look for evidence against her.

The DHB’s internal investigation showed the woman had not accessed the NHI or DHB databases.

Our investigation

The woman complained to us under principles 1-4 and 11 of the Privacy Act.

We found no breach of the collection principles (1-4). Neither did we find a breach of principle 11 which says an agency that holds personal information is able to disclose it in order “to avoid prejudice to the maintenance of the law by any public sector agency, including the prevention, detection, investigation, prosecution, and punishment of offences”.

After we found the woman had suffered no interference with her privacy, she took the case to the Tribunal.

Tribunal case

The woman claimed after the police officer had contacted her manager, she was subjected to further audits and was harassed by the manager. She withdrew from her friends and her drinking increased. She also gained weight, slept badly and suffered anxiety attacks at work. She later resigned from the DHB.

But the Tribunal noted the woman “did not impress as a witness. Unfortunately, she has become blind to any point of view other than her own. She hears only what she wants to hear and sees only that which she wants to see.” The Tribunal said it preferred the evidence given by the police officer and the woman’s manager.

Search warrant

The police officer testified that Police did not have enough information to obtain a search warrant or a production order, and this was why Police used the Privacy Act’s principle 11 to request evidence from the DHB.

The Tribunal agreed with the view of Police. It said if there was insufficient evidence to obtain a compulsory order, it would be absurd if Police were not able to rely on using the Privacy Act. The Act’s privacy principles were flexible enough for this kind of request to be made by law enforcement agencies.

Meaning of ‘necessary’

The Tribunal found Police was able to satisfy the criteria needed to rely on the maintenance of the law exceptions and it considered the collection of the information was necessary for the purpose of maintaining the law. Like our Office, the Tribunal found no breach of the collection principles.

The Tribunal found Police had reasonable grounds to believe that disclosure of the brother’s offending, conviction and sentence was necessary because it gave the DHB the basis for agreeing to their request.

If the information was not provided, the DHB could justifiably have declined the request and this would also be in accordance with the Privacy Act. The disclosure of the woman’s connection to her brother, along with her brother’s offending, was necessary – and was not merely desirable or expedient.

The Tribunal dismissed the woman’s claim and upheld the original decision by our Office.

Image credit: Michael Kumm via Flickr

Read the full text of the decision.

Human Rights Review Tribunal, health, law enforcement

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Applying for a job can be a nerve-wracking ordeal and, more likely than not, it ends in disappointment. It can be devastating to miss out on that dream job and not knowing why you missed out can be incredibly frustrating.

One common part of applying for a job is nominating your referees. Confusion about this process can raise privacy concerns which sometimes ends up in our Office. There are specific parts of the Privacy Act which address these matters and it is important both parties are aware of them.

Firstly, among other important obligations, a potential employer must only contact the referees the applicant has listed. Please see our blog post on recruitment for more advice.

When you don’t get the job

What if you don’t get the job, and you are worried your referees let you down? What are your rights if you want to know what they said about you? Or, what if you want to protect a referee from a disgruntled applicant who might be threatening to sue?

Principle 6

Under principle 6 of the Privacy Act, you are entitled to access personal information an agency holds about you – but not always.

A potential employer may be able to withhold this information. Section 29(1)(b) says an agency may refuse to disclose personal information that is evaluative material, if disclosing it or information identifying its source (or both) would breach a promise to keep the information or the identity of the source confidential.

Evaluative material

Evaluative material is described in section 29(3) as information “compiled solely” for a range of purposes, and where there is a common purpose in the supply and receipt of that information. In other words, the information needs to be gathered solely for that purpose.

There needs to have been a promise made to the referee about withholding their identity or the information in confidence, and that promise must have been clear to the referee when they make the decision whether or not to supply the information. This typically applies where an employer requests a letter of reference from a referee nominated by a job applicant.

It is important to be aware that this does not apply to unsolicited information. For example, unsolicited complaints about an employee by a disgruntled client cannot be withheld under this provision.

Section 29 of the Privacy Act allows for people to be able to give free and frank references about people. It also means potential employers are more likely to value the information they hear. This can protect people from possible repercussions, awkwardness, and protects current and future relationships. Many people would also refuse to give references if they did not have confidentiality, or the ability to speak honestly. 

Disappointed applicants

But some disappointed applicants will speculate on the potential reasons they were denied a job, and unfortunately this feeling of frustration can be reinforced when information about them is withheld. Sometimes this sense of grievance arises from the way they are treated or how the application was handled. In these cases, it may be beneficial to get the referee’s permission to release the information or to give summary feedback on why an applicant was declined.

Here’s a couple of tips:

• If you are applying for a job, be careful who you use as a reference, and pick someone who is professional (and who hopefully likes you!).
• It’s also good to advise the recruiters you would like to be contacted before the referees are contacted, just in case circumstances changed in the meantime.

Here’s another thing to think about. If you really want a job somewhere, is lodging a complaint about how your application was handled going to bring you any benefit? There may be variety of reasons why you didn’t get a job and often references are only a minor factor.

If you have further questions about privacy and recruitment, try using our AskUs tool to get the answers.

Image credit: Massimo Busacca, referee, Switzerland via Wikimedia Commons

IPP6 – access, employment

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Callers to our Enquiries service often start with “I need some legal advice”. If the caller means guidance on his or her Privacy Act rights or the obligations of an agency, then we can help. But if by “legal advice” he or she means a legal “opinion” about how the Privacy Act might apply, then this is something our Enquiries service can’t do.

Guidance on the Privacy Act

Distinguishing between guidance on the law and legal opinion might seem like hair-splitting, but it is an important difference. Take access, for example. Our Enquiries service can tell you that you have the right, under principle 6 of the Privacy Act, to ask for any personal information that an agency holds about you.

We can advise you how an agency must respond to your request, and that the law allows for information to be withheld in certain circumstances. We can discuss the circumstances for withholding information and tell you that you have the right to complain to us and have that agency’s decision reviewed.

What we can’t tell you is whether you have the right to see particular information, because the agency may have a legitimate reason to withhold it. The reasons to withhold depend on the specific circumstances of a case.

Legal opinion

To provide a legal opinion, our Office would need to gather all the relevant information. We might, for instance, need our investigators to obtain the information that has been withheld from you. We could then weigh it up against the Privacy Act’s withholding grounds.

Only then would we be able to give you and the agency a legal opinion on whether you should have access to the information or not.

Is it a breach of my privacy?

We are also often asked “has my privacy been breached?” What if, for instance, your employer has put a GPS device in the work car, and is collecting information about where you’ve been going outside work hours. Or what if personal information has been disclosed against your wishes?

Agencies must have legitimate reasons for collecting, storing, and disclosing information. They must advise people of certain things when they collect information, like what they are collecting, why they are collecting it, how they intend to use it, and if there are any possible consequences to you for not giving it.

Agencies must also take reasonable steps to ensure the information is accurate before they use it, and they must keep it safe. They can only use or disclose it in certain circumstances.

This is set out in the Privacy Act’s 12 information privacy principles. If you think an agency is not complying with the Act, and it is unable to resolve your concerns when you ask them about it, you can complain to us.

Complaints

In most cases, we will be able to tell you if your complaint is outside our jurisdiction. There are a few no-go areas.

For example, we are unlikely to be able to investigate if your ex-boyfriend is saying stupid – but not highly-offensive – things about you on Facebook. This is because personal or domestic affairs are outside our jurisdiction under section 56 of the Privacy Act. The exception is if the information could be considered highly offensive to an ordinary person.

We are also not able to investigate if the information you are concerned about is the subject of court proceedings. The courts in their judicial function are outside the Privacy Act.

If you believe an agency has breached your privacy, and that you have suffered harm as a result, you can lodge a complaint and our investigators will look into it.But until then, our Enquiries service can give you guidance, but not a legal opinion.

Advisory opinions for agencies

Note that we do have a separate advisory service for agencies. Our Office offers advisory opinions to help agencies understand how the Privacy Act might apply in a situation they are exploring or considering. The process is intended to promote understanding of the information privacy principles and give greater certainty to agencies in relation to the Act’s operation. You can find out more about our advisory opinions here.

Image credit: Creative Commons via smlp.co.uk

complaints, enquiries

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A chiropractor being investigated by ACC made numerous requests for information about the investigation. When ACC withheld some of the information, he complained to the Privacy Commissioner, and then took his case to the Human Rights Review Tribunal.

Dr L is a chiropractor and acupuncturist from the United States who moved to New Zealand in 2009. He opened a clinic in Tauranga in 2010. After closing that business, he opened another clinic in Wellington in 2013.

In 2011, ACC began an investigation into Dr L’s business to determine whether a number of ACC claims submitted by him were genuine. ACC had concerns over the possible duplication of claims and other issues.

Requests to ACC

To find out more about the allegations against him, Dr L made a large number of requests to ACC for information under both the Privacy Act and the Official Information Act. He hoped that if he found out what was behind the investigation, he would be able to correct what he believed was misinformation held by ACC.

However, after ACC discontinued its investigation in 2014, it decided to give Dr L almost all the information previously withheld from him. But it withheld information about:

• ACC’s investigative techniques and the names of the informants; and
• information that would involve the unwarranted disclosure of the affairs of other people.

The Tribunal

The Human Rights Review Tribunal recently published its decision on Dr L’s Privacy Act complaints. The complaint centred on information privacy principle 6 of the Privacy Act which gives individuals the right to request their personal information from an agency.   

When the case went before the Tribunal, both parties initially could not agree on what the Tribunal was there to decide. Dr L wanted any and every one of ACC’s withholding decisions leading up to the eventual release of his information reviewed by the Tribunal. He also wanted the Tribunal to review whether ACC acted properly during its entire investigation.

On the other hand, ACC said the only issue the Tribunal needed to decide was whether ACC was right to withhold a list of clients spoken to by the agency during its investigation, because it had already released almost all the previously withheld information.

The Tribunal decided that the core of the case lay in whether ACC had properly continued to withhold the two restricted types of information. The issue was whether, when releasing the information it had previously withheld, ACC was right to hold on to some information. That information related to its investigative techniques, and information which would involve the affairs of other persons.

Duty to investigate

In its decision, the Tribunal said ACC, like other agencies that spend public money, had a duty to prevent, investigate and detect offences concerning its payments. To be able to carry out this duty, ACC must encourage members of the public to provide relevant information. The detection and investigation of fraud is particularly reliant on public information.

The Tribunal said the Privacy Act’s maintenance of the law reasons for withholding information specifically concerning the “prevention, investigation and detection of offences” were justified when related to its investigative techniques.

The Tribunal said ACC’s use of section 27(1)(c) of the Act in this case was proper – “that is, the information relates to ACC’s investigative techniques and methodologies and includes the names of confidential informants”.

Affairs of another

On the second withholding ground – the unwarranted disclosure of the affairs of another individual – the Tribunal said it was clear the information did indeed contain the names and contact details of people who provided information to the ACC investigators, including employees and patients.

“The salient point is that information about Dr L was provided to ACC by a range of persons, but particularly by those working with him and by patients. It is clear from what we have seen and heard the information was provided in expectation the identity of the informants would be withheld from Dr L.”

The Tribunal concluded the disclosure of the information about the identities of informants and others would have been unwarranted. The information had little direct relevance to the issue between Dr L and ACC. It added there was a real risk the information would be misused, including being published on the internet.  

The Tribunals said ACC had properly withheld the information and dismissed Dr L’s claim.

Image credit: Creative Commons via Pixabay.

Human Rights Review Tribunal, health, ACC, IPP6 – access

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Source: Tairāwhiti Graduates Celebrate Success – Press Release/Statement:

Headline: Petdirect Expands From Digital To Physical Retail

In a bold move against prevailing economic trends, New Zealand’s leading online pet retailer, Petdirect, announces plans for major retail expansion with new stores opening in Mt Roskill, Auckland and Tower Junction, Christchurch in the coming months. Following the tremendous success of its first brick-and-mortar location in Takapuna, which opened in October 2024, this strategic expansion solidifies the company’s position as a dominant force in New Zealand’s pet retail sector. The 100% Kiwi-owned and operated company, which just celebrated its 5th birthday, has rapidly evolved from an online startup during the pandemic to capturing a majority share of the online pet supply market.

The post Petdirect Expands From Digital To Physical Retail first appeared on PR.co.nz.

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There has been a significant amount of media coverage about our investigation into Westpac bank disclosing journalist Nicky Hager’s bank account information to Police in 2014. In the course of that reporting, some misconceptions have emerged. Because of the interest in the case, and the potential implications for future practice, we have noted some points of clarification and context below.

Coverage of the story has focussed on our final opinion letter to Mr Hager that he chose to make public. The final opinion is the tail end of a long process that involved submissions, meetings and careful consideration of the facts of the case.

Key background facts

1. Westpac disclosed Mr Hager’s account information during a Police investigation that followed the publication of Mr Hager’s book Dirty Politics.  In the course of investigating how Mr Hager got the information he used to write the book, Police asked Westpac for information about Mr Hager. Westpac provided Police with several months of Mr Hager’s transaction information.

Privacy Commissioner’s legal opinion

The Privacy Commissioner’s opinion is just that – it is not a ‘ruling’ and it is not legally binding. The Human Rights Review Tribunal – where Mr Hager has taken his case now – issues rulings. It hears evidence and argument afresh and comes to its own conclusion.

1. We form a view of each case based on its specific facts. The law describes a range of circumstances where organisations like banks can disclose customer information, but they have to be able to justify why they did so
2. The views expressed in our correspondence are not changing or reforming the law. The Police sought Mr Hager’s information without seeking a production order from a court. That in itself is unremarkable; there is nothing in the Privacy Act that requires a production order before information may be released.

Westpac’s decision to disclose the information

1. Westpac told us its authority to disclose Mr Hager’s banking details came from its terms and conditions, which Mr Hager had accepted. Principle 11(d) of the Privacy Act allows agencies to disclose personal information if the agency believes on reasonable grounds that the disclosure is authorised by the individual concerned. For example, a home insurer may share information with a mortgage holder, with customer consent.
2. The relevant clause said that Westpac would disclose information to Police whenever it “reasonably believes that the disclosure will assist it to comply with any law, rules and regulations in New Zealand or overseas or will assist in the investigation, detection and/or prevention of fraud, money laundering or other criminal offences.”

Privacy Commissioner’s view of Westpac’s reasoning

1. We found that a reasonable Westpac customer would think the phrase “fraud, money laundering or other criminal offences” suggests “other criminal offences” would be similar sorts of financial crimes. Police asked for Mr Hager’s information as part of an investigation involving section 249 of the Crimes Act (accessing a computer for a dishonest purpose), and fraud. Mr Hager himself was not a suspect in this investigation. Westpac has noted that this latter fact was not clear at the time the information was requested. We therefore formed our view that Westpac could not reasonably believe Mr Hager had given his consent for his account information to be disclosed to the Police, given that set of specific facts.
2. When an agency sets its terms and conditions, it needs to abide by them. Our view was that Westpac’s interpretation of its terms and conditions was too broad, particularly in its definition of “other criminal offences”.
3. Westpac also argued that the disclosure was allowed under principle 11(e)(i), which allows agencies to disclose information “to avoid prejudice to the maintenance of the law.” We thought this argument was difficult to sustain. If Westpac thought that Mr Hager had authorised it to disclose his information to Police, then “maintenance of the law” didn’t need to enter consideration. It is not consistent to disclose information based on both criteria because they address different circumstances, and one of the two should be enough to authorise disclosure.

Why do production orders and search warrants exist?

1. Production orders oblige agencies to provide information. The Privacy Act exceptions do not oblige an agency to disclose information – they enable an agency to disclose information.

How does the “maintenance of the law” exception work?

1. The Privacy Act maintenance of the law exception (principle 11(e)(i)) allows an agency to give information to the Police, provided certain criteria are met.
2. This exception does not give Police the right to see any information they would like in order to maintain the law. Rather, it only applies to situations where not seeing the information would prejudice, or do some harm to, maintaining the law. Fraud is a good example. If banks suspect fraud, they are absolutely within their rights to disclose information to the authorities. Police cannot investigate without good information from the bank. Similarly, in missing persons’ cases, bank transactions could indicate where someone is. Under these circumstances, if the agency refused to provide the information to Police, it could be hindering an investigation or, in other words, prejudicing the maintenance of the law, and they could therefore provide the information without breaching the individual’s privacy.
3. A good way to think of the maintenance of the law exception is that it functions as “a shield, not a sword.” Rather than a government agency saying “you must give this information so we can maintain the law”, the exception enables an agency receiving the request to say “explain to me why not giving this information would stop you from maintaining the law.”
4. The case law in this area underlines that when government agencies ask for information under this exception, they need to provide reasons why they think the exception applies. In the Westpac-Hager complaint, Police did not provide any reasons, so Westpac had no way to assess whether the “maintenance of the law” exception applied.

Role of the Human Rights Review Tribunal

1. Mr Hager’s legal counsel has indicated that he will be taking the case to the Human Rights Review Tribunal. The Tribunal will hear the case “afresh” (i.e: without taking the Privacy Commissioner’s view into consideration), and then issue a judgment. Tribunal judgments, unlike findings from this office, are enforceable rulings. We will be keeping a keen eye on the outcome in order to inform our approach to future cases.

finance, law enforcement, IPP11 – disclosure

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A recent data breach involved a deliberate email phishing attack on an organisation. The email looked like it came from the chief executive and requested a copy of the membership list (names and email addresses).

At the time, the CEO was away from the office. This fact could have been known by the person who sent the phish, as a high-profile person’s travel for work is often publicly known. Because this attack was targeted, it was not easy to spot. One of the reply addresses was unfamiliar, but the other was the CEO’s work email address so the unfamiliar one could have been assumed to be their personal email address.

The request was also plausible, particularly since the information asked for was limited to names and email addresses.

Preventing against these attacks

The most effective way for an organisation to protect against this form of attack would be to have a policy of independently verifying requests for sensitive information. Since this might involve junior staff having to contact senior management to verify a request, employees need to be confident that they are expected to do so.

Take time to investigate before you act

A basic phish can usually be spotted by moving your mouse cursor over the link without clicking. The text that pops up when you do that will usually look different from what you might expect. This difference might be just one character. Moving the mouse cursor over the reply email address can also be helpful when in doubt.

The basic phishing email below is an example. It shouldn’t have been addressed to “undisclosed-recipients” as your bank can address an email just to you. And you can see the box that popped up when the mouse cursor was held over the link. An address of “alex-parus.ru/” does not seem likely for a New Zealand company to use.

Three things to do when you get a phishing message

1. Report it!

• Let others in your organisation know. If you have IT support people, forward the email with a warning that it’s a phishing email. They should handle the rest. In a small organisation, let everyone know – but do not forward the message. People have been known to click on the links in such situations “to see what happens”! You can convert the link to plain text so people can see it, without it being so dangerous.
• Report the phish to the Electronic Messaging Compliance Unit at the Department of Internal Affairs (DIA) by forwarding the email to scam@reportspam.co.nz or by forwarding the TXT for free to the shortcode 7726 (SPAM).
• Let the other organisation know. If the message pretended to come from an organisation, then it’s helpful to let them know. It can take a little time looking on the organisation’s website (type the real web address in yourself – don’t click on that link in the phishing email!) to find where to report the spam

2. Delete it!

3. Get help!

• If you responded to the phishing email with personal information, contact us using this form or phone us on 0800 803 909 (Monday-Friday between 10am-3pm).
• You may want to seek help in handling enquiries by affected people. IDCARE is a sponsored support service. Contact them on 0800 201 415 or contact@idcare.org.
• You should still report it as above. DIA may pass on your report to the Police, Netsafe or MBIE (Consumer Affairs) for further help.

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Sir Bruce Houlton Slane KNZM, CBE, LLB practiced law in New Zealand for almost 50 years, including 11 years as the country’s first Privacy Commissioner.

Sir Bruce won many admirers in New Zealand and abroad for his work as Privacy Commissioner. He played a major role in drafting the legislation which established the office from scratch.

Early years

Born in 1931, Sir Bruce was educated at Takapuna Grammar School, later graduating with a law degree from Auckland University College.

In 1957, he became a partner in the firm that was to become Cairns Slane Fitzgerald and Phillips. He recognised early on that the law profession needed to do a better job at promoting itself and responding to public enquiries and criticisms. This awareness led Sir Bruce to take on the public relations functions at the Auckland District Law Society. He established the society’s Northern Law News newsletter and edited it for 13 years from 1967 to 1980. Sir Bruce’s “gregarious and affable character helped him to win the confidence of many journalists and the profession’s image was polished as a result”, Graham Wear noted in the Auckland District Law Society book, It Was All Legal.

Media roles

Sir Bruce’s relationship with the news media resulted in part time roles as a radio commentator on 1ZB and a newspaper columnist on privacy matters. His radio career was at a time when the Law Society prohibited lawyers from advertising themselves. He was known to listeners by the pseudonym “Bruce Christopher”. Later, he was to become chairman of the Broadcasting Tribunal for the entirety of the organisation’s 12 year life.

Sir Bruce remained a partner at Cairns Slane Fitzgerald and Phillips until his appointment as Privacy Commissioner in 1992. He was also a Human Rights Commissioner from 1992 to 2001. He also served as president of the Auckland District Law Society – twice – and president of the New Zealand Law Society – three times.

The law was one of Sir Bruce’s four main interests in life. Apart from his three children and grandchildren, including his cartoonist son Chris, he had a deep interest and engagement with  communications and current affairs. In 1989, he was presented with a special award at the radio industry awards “in recognition of an outstanding contribution to radio in New Zealand”. In 1993, he was named communicator of the year by the Public Relations Institute.

Honours

He held various official posts at the International Bar Association, and in 2007 was granted an Honorary Life Membership of that organisation.

Sir Bruce was also active in the business world, holding directorships on various company boards including deputy chairman of the Countrywide Building Society for five years.

In 1985, Sir Bruce received a CBE and in 2003 was appointed a Distinguished Companion of the New Zealand Order of Merit (DCNZM). In 2009, Sir Bruce was knighted for services to personal and human rights.

After retirement

Even in retirement, Sir Bruce remained accessible to the news media and was active in challenging misreporting. Until recently, he was a regular guest on RNZ afternoon programme The Panel. On one earlier occasion, he challenged the Sunday News about an inaccuracy. As a result, he secured a weekly Privacy Matters column.

He also remained an activist, as recently as 2010 lending his name to a campaign to retain New Zealand rural land in New Zealand ownership.

His many friends and former colleagues can relate that the qualities that characterised him were his wry sense of humour, keen sense of a good story, enthusiasm for the law, insatiable appetite for news and current affairs and an enduring concern that legal redress should be available to ordinary people.

Sir Bruce Slane is survived by his children, Peter, Chris and Judith, and seven grandchildren.

Image credit: Portrait of my Grandfather by Henry Christian-Slane.

International, media

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I was recently lucky enough to attend the Asian Privacy Scholars Network 5^th International Conference, hosted by the Business School at the University of Auckland.

The inspiring line up of privacy thinkers from around the world included the Honourable Michael Kirby, Prof Kiyoshi Murata from Japan’s Meiji University, and Professor Dr Sarah Hosell of the University of Applied Sciences in Cologne. You can find out more about the speakers and topics here. Their presentations will also be published in due course. 

Snapchat and sexting

One outstanding privacy commentator was Prof Woodrow Hartzog of Samford University, Alabama. Prof Hartzog is the Starnes Professor of Law at Cumberland School of Law, as well as being an Affiliate Scholar at The Center for Internet and Society at Stanford Law School and he spoke about his upcoming book – Privacy’s Blueprint: The battle to control the design of new technology.

Prof Hartzog began his presentation with the example of Snapchat- a smart phone application with an invitation by design to send sensitive information. Its picture messages disappear within seconds of the recipient opening them. When Prof Hartzog asked what the purpose of such an app might be, there were delighted calls of “sexting!” from the mostly middle aged scholarly audience.

Third party operators soon appeared after the advent of Snapchat and these provided ways for snap-chatterers to capture the images before they disappeared. Inevitably, this led to the data breach known as ‘The Snappening’. But shouldn’t Snapchat have been prepared for this eventuality?

Hacks and data breaches

Recently, there have been many other hacks and data breaches in the news media – Ashley Madison, the Australian Census site, Hacking Team, Yahoo to name a few – and yet we see agencies applying sticking-plaster solutions and some governments even acting to criminalise ‘white hat’ (or ethical) hackers who work to expose vulnerabilities safely and alert the relevant agency.

What’s the answer? Prof Hartzog makes three broad points:

1. Design matters for privacy;
2. Privacy law should take design more seriously; and
3. A design agenda should have its roots in consumer protection and surveillance law. 

Making Privacy by Design meaningful

There are huge gaps in privacy law concerning the design of new technology, and Privacy by Design (PBD) has a long way to go before it reaches the universal acceptance it deserves, according to Hartzog.  Furthermore, we need to make sure PBD is a meaningful concept and not just a slogan.

Prof Hartzog says privacy’s three basic rules are:

1. Give individuals some control over their own data;
2. Don’t tell lies; and
3. Don’t cause any harm.

But what do these three aspirational points mean in the real world? How can people control what they don’t understand? How can you understand what you are consenting to with a single click as you eagerly wait to use your new app? And how realistic is to go back and check the 50 apps you already have on your phone?

Also while designers might not deliberately tell lies, what about obscuring the important stuff in the usual “accept all” requirement before downloading a new app?

And finally, how do we define harm? In New Zealand, we have a definition in our Privacy Act and some guidance from the Human Rights Review Tribunal, particularly following this precedent-setting case, and others like this one. But harm can be difficult to attribute to a single cause when your personal information is leaking from numerous sources.

Prof Hartzog says the big problem is the overwhelming incentive to design technology which maximises the collection, use, and disclosure of personal information. The value of personal information encourages a “collect first, ask questions later mentality” which marginalises the virtue of being transparent.

While there are some good examples of privacy-protective design, many new digital products and services are not good enough and erode our privacy rights.

In short, the design in new information technologies is failing us.

Three values for design

The three values of Prof Hartzog’s blueprint for designing for privacy are trust, obscurity and autonomy. These three values are intertwined. Autonomy is furthered as a design value when privacy law nurtures technologies that protect our ability to trust and maintain obscurity. Trust and obscurity are complementary values. Trust protects our information within relationships. Obscurity protects us when there is no one to trust.

He also says designers need to design to standards so their products are not deceptive, abusive or dangerous. Lawmakers and the courts need the right tools to discourage deceptive, abusive or dangerous design. These tools vary in strength from soft to moderate to robust. Robust responses should be used to confront the most serious privacy design problems. Lawmakers should seek balance and fit when choosing the appropriate legal response. Their toolbox should include privacy enhancing technologies, education, investigations and enforcement, fines and penalties and international collaboration. If you have others, we welcome your suggestions.

In conclusion, Woodrow Hartzog is a bit of a privacy hero with some really cool ideas. You can follow him on Twitter at @hartzog. When his book is published in 2017, I will be reading it.

Image credit: Red and white bullseye design by Peter Kratochvil

International, research, Asia Pacific

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