Already over-extended, Australia’s privacy commissioner takes on behemoth Facebook


The action against Facebook, announced by Falk this week, looms as a real test of Australia’s privacy laws and whether the commissioner has the teeth to deal with personal data issues that have become increasingly important in the online era.

Illustration: Matt DavidsonCredit:

What does she do?

Privacy has emerged as a growing issue in the era of digital platforms and, last year, Falk’s office received a $25 million boost for handling of privacy complaints and enforcement. Her agency has the power to scrutinise organisations’ privacy protections, investigate possible breaches of privacy laws and seek penalties and policy changes from companies.

In a Senate committee hearing earlier this month, Falk said her office was dealing with a significant increase in privacy complaints from Australians. “Aside from a heightened community awareness of privacy issues, personal information is really what is driving the digital economy,” she said.

In another of the office’s key areas of responsibility, freedom of information, the office has faced ongoing concerns about long waits for reviews on freedom of information decisions by government agencies. Falk spoke to the Senate committee about the massive increase in cases coming before her office and the “challenge that arises with a considerable increase in the workload of the office and the issues that that raises”.

When the former Labor government overhauled the agency and freedom of information laws in 2010, it introduced three roles at the top of the office: information commissioner, privacy commissioner and freedom of information commissioner. In 2014, the Coalition government attempted to abolish the office altogether but was thwarted in the Senate. The office, however, had its funding cut to the point that its commissioners were working from home. With the funding partly restored in 2016, the agency has maintained the one commissioner model and critics have said it is on “life support”.

The commissioner has alleged the personal data of Facebook users was disclosed for purposes other than those for which it was collected.

The commissioner has alleged the personal data of Facebook users was disclosed for purposes other than those for which it was collected.Credit:Bloomberg

What did she do this week?

Falk announced a Federal Court action against Facebook over its role in the Cambridge Analytica scandal that hit global headlines in 2018. The information commissioner is seeking to hold the social media giant to account for allowing users’ personal data to fall into the hands of data science firm Cambridge Analytica. Falk said the data of 311,127 Australians was compromised.

She accused Facebook of “serious and/or repeated interferences” with user privacy. The main alleged breach of privacy laws was personal data being disclosed for purposes other than those for which it was collected, which Falk said left the information “exposed to be sold and used for purposes including political profiling, well outside users’ expectations”.

Why is this important?

The legal action looms as a high-stakes test for Facebook and for the Australian people. There is the financial angle: under the laws in place at the time of the breach, companies can be charged $1.7 million for privacy breaches. The court will be in a position to treat the 311,000 alleged breaches collectively or as individual infractions. If it chose the latter, Facebook’s fine could run into the billions. In the United States, where 70 million people had their data accessed, Facebook reached a $US5 billion ($7.1 billion) settlement with the Federal Trade Commission. In Britain, where 1.1 million people were affected, Facebook paid a £500,000 ($905,000) fine in 2018.

It’s also a test of Australia’s privacy laws and Falk’s office itself. In the announcement of the legal action, Falk pointed to “systemic failures to comply with Australian privacy laws by one of the world’s largest technology companies”. Personal data has made companies like Facebook and Google enormously rich and powerful, giving them market dominance that governments around the world are now trying to grapple with.

The penalties and enforcement powers to deal with privacy breaches in Australia have been increased since the Cambridge Analytica scandal. And, following the competition and consumer watchdog’s landmark digital platforms inquiry, the government committed to a further review of privacy laws to “empower consumers” and protect their data while also looking after national economic interests. The outcome of the legal offensive against Facebook is sure to influence the future of this era-defining policy challenge, which Falk says is at a “pivotal point”.

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