Legal experts call for end to use of voters’ personal information, with Privacy Commissioner questioning whether it’s ‘appropriate in the current environment’

This article is more than 2 years old

This article is more than 2 years old





Both major political parties are defending the special exemption they enjoy from privacy laws when they use voters’ personal information despite mounting calls for its abolition in the wake of the Cambridge Analytica revelations, including from the privacy commissioner.

It comes as Rod Sims, the chairman of the Australian Competition and Consumer Commission (ACCC), confirmed the data collection practices of Facebook and other internet giants will be investigated by the consumer watchdog as part of its ongoing inquiry into their impact on competition in the media and advertising markets.

Two-thirds of Australians mistakenly believe political parties must abide by the Privacy Act in their campaigning activities and voter research databases, the privacy commissioner, Timothy Pilgrim, said.

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But cyber law experts told Guardian Australia the privacy law carve-out was sufficiently broad to cover the political activities of a company like Cambridge Analytica if it was contracted by a political party in Australia, and Australians had no legal way of finding out what personal information such companies or the parties held on them.

The two major parties confirmed on Wednesday they continued to support the exemption, despite recommendations to scrap it by the Australian Law Reform Commission after a major inquiry a decade ago.



Data mining and targeted messaging has become central to modern political campaigning, but the exposure of Cambridge Analytica’s methodologies has raised serious doubts around the ethics and privacy law implications of the practices, with some calling it “information warfare”.



But there are virtually no legal limits to the use of personal data for political purposes in Australia. Australian politicians, political parties and their contractors and subcontractors have been exempt from the operation of the Privacy Act since 2000.



A 2017 survey conducted by the privacy commissioner revealed that 64% of the Australian public incorrectly believed political parties were covered by the Privacy Act, which sets out rules for how organisations collect, use and disclose the personal data they hold.



Pilgrim, who has asked Facebook to provide information about whether Australians were affected by the Cambridge Analytica breach, said it showed “there is a disconnect with community expectations in this area”.



[Political parties] have done a deal with the devil, giving themselves special rights to exploit and misuse data David Vaile, chair of Australian Privacy Foundation

“I believe the political exemption should be reconsidered to determine whether it remains appropriate in the current context and environment,” he said. “The data environment has significantly changed since the introduction of that exemption in 2000.”



David Vaile, the chair of the Australian Privacy Foundation, said “there’s nothing to constrain these sorts of exemptions the political parties give themselves”, given the vague definition of “political purposes” in the act.



“They’ve done a deal with the devil, giving themselves special rights to exploit and misuse data, bypass the privacy laws that apply to everyone else for their own purposes. They think if it helps them get an edge in an election, it’s OK.”



‘With Facebook you’re essentially paying with your data’

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The ACCC is conducting an inquiry into digital platforms and their impact on competition in media and advertising services markets.

Sims told the Guardian Australia he would take a “broad view” of the inquiry’s remit in the wake of the Cambridge Analytica revelations which exposed the harvesting of the personal data of tens of millions of Facebook users for profit and political advertising purposes.

“The whole question of what data platforms have, what consumers know about it, how it’s used, how they might exclude others from using it is obviously central to this inquiry,” he said.

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Sims said consumer law had a role to play in regulating the tech giants, and he was communicating with overseas counterparts on the issue.

“Our consumer act says ‘don’t mislead consumers’,” he said. “Facebook’s business model is to collect data on people and then make money out of it, so to use Facebook you’re essentially paying with your data. So the narrow question we’ll look at is: are consumers misled in any way in terms of what data is collected from them, and how it is used. We’ll look at that with a open mind.”

But he promised a broad look at how the big digital platforms were affecting consumers.



“You can’t narrow down these sorts of inquiries because then you’ll miss the wood for the trees. We’re taking a broad look, saying what’s going on in this market and should we be worried about it.”

Submissions close on 3 April and the inquiry is due to release a draft report by the end of the year.



Major parties defend privacy exemption

On Wednesday afternoon the Greens said they would consider introducing legislation to overturn the privacy law exemption for political parties, but they are unlikely to have support from the major parties.

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The attorney general, Christian Porter, said: “This exemption is designed to encourage freedom of political communication and support the operation of the electoral and political process.”



The shadow attorney general, Mark Dreyfus, said: “The exemption which Australian political parties have for the Privacy Act does not in any way allow parties to access illegally harvested data.”



Researcher Nigel Phair, from the University of New South Wales Canberra’s Centre for Internet Safety, said the exemptions for political parties dated from before modern-day online activities.

“If my business wants data from the electoral roll, it can’t have it; but political parties can. The law hasn’t kept up with the digital age,” he said.

Psychographic profiling and microtargeting are a political abuse David Vaile

Privacy law expert Vaile said the lack of action on privacy law by both major parties had left Australians exposed. “They’ve not looked into the future and recognised that psychographic profiling and microtargeting are a political abuse, they are very hard to counter,” Dr Vaile said. “It’s a new threat that wasn’t visible in the past.”

The Guardian revealed on Sunday that the London-based political consultancy had obtained the data of 50 million Facebook users in order to target political messaging for its clients, which included the Trump campaign in 2016.



Facebook said the companies involved breached their terms of service not by gathering the data, but by passing it to a third party, and has since suspended Cambridge Analytica and its associated companies from its platform.



In the ongoing fallout from the scandal, Cambridge Analytica’s CEO Alexander Nix was suspended from the company after secretly filmed video emerged of him boasting about swinging the US election for Trump.