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These are: pseudonymisation and encryption of personal data; ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services; restoring the availability and access to personal data in the event of a physical or technical incident; and having a process for regularly evaluating the effectiveness of security measures. Principle 6 mandates that where an agency holds readily retrievable personal information, the individual concerned shall be entitled to obtain from the agency confirmation of whether or not the agency holds such personal information and to have access to that information.
In providing such access the individual shall be advised that they may request the correction of that information. Article 15 of the GDPR contains an equivalent right of access where the data subject can obtain confirmation as to whether his or her personal data is being processed as well as access to the data. The data subject can also obtain information about the purpose of processing, categories of personal data, recipients of the personal data and how long the data is likely to be stored.
Principle 7 allows individuals to request correction of their information from an agency that holds it. If a correction is sought but not made, the individual can ask for this be noted in a statement attached to the information.
However if an agency receives a request to correct personal information, it must take such steps to correct the information as are reasonable in the circumstances, having regard to the purposes for which the information may lawfully be used. If the agency is not willing to correct the information, it should if requested take necessary steps to attach to the information, any statement of the correction sought.
Any person or agency to whom personal information has been. Article 16 of the GDPR similarly contains a right of rectification, stating that the data subject shall have the right to obtain from the controller, without undue delay, the rectification of inaccurate personal data concerning him or her.
Taking into account the purposes of the processing, the data subject also has the right to have incomplete personal data completed, including by means of providing a supplementary statement.
Principle 8 stipulates that any agency holding personal information should not use it without taking such steps as are reasonable in the circumstances to ensure the information is accurate, up to date, complete, relevant and not misleading. Article 5 of the GDPR also requires that personal data be accurate and, where necessary, kept up to date.
Principle 9 provides that an agency holding personal information shall not keep it for longer than is required for the purposes for which the information may lawfully be used. Similarly, Article 5 of the GDPR requires personal data to be kept in a form permitting identification of data subjects for no longer than is necessary for the purpose, although it may be retained for longer for archiving purposes. Complementing this, the GDPR also contains a right to erasure more commonly known as the right to be forgotten.
This requires the data controller to erase personal data without undue delay in a number of situations such as when it is no longer necessary for the purpose of collection and when the data subject withdraws consent or objects to the processing. There are exceptions to the right to be forgotten, including where processing is necessary for exercising the right of freedom of expression and information, compliance with a legal obligation, public interest in the area of public health, archiving in the public interest, or establishing, exercising or defending legal claims.
Principle 10 prevents an agency holding personal information for one purpose from using it for another purpose unless the agency believes on reasonable grounds that one of the exceptions applies. Exceptions include: the information is publicly available, use of the information is authorised by the individual concerned, non-compliance would not prejudice the interests of the individual concerned, non-compliance is necessary to prevent or lessen a serious threat, the purpose for which the information is used is directly related to the purpose in connection with which the information was obtained, or the information will not be used in a form in which the individual concerned is identified.
Limits on use of personal information is also dealt with in Articles 5 and 6 of the GDPR, requiring that personal data shall not be further processed in a manner that is incompatible with the specified, explicit and legitimate purposes.
These factors include: whether there is a link between the purposes for which the data has been collected and the purposes of the intended processing, the context of the data collection, the nature of the personal data, possible consequences of further processing and the existence of appropriate safeguards.
Principle 11 states that an agency holding personal information shall not disclose the information to a person or agency unless one of the exceptions applies. Exceptions include that the disclosure of the information is directly related to one of the purposes in connection with which the information was obtained; the information is publicly available and it would not be unfair or unreasonable to disclose it; disclosure is to or authorized by the individual concerned; non-compliance would not prejudice the interests of the individual concerned; non-compliance is necessary to prevent or lessen a serious threat; disclosure is necessary to facilitate the sale or other disposition of a business as a going concern; or the information will not be used in a form in which the individual concerned is identified.
Consequently, the limitations on the further processing of personal data detailed under Principle 11 also apply to the disclosure of personal information. Principle 12 puts some rules around unique identifiers. These stipulate that an agency shall not assign a unique identifier to an individual unless the assignment of that identifier is necessary to enable the agency to carry out any one or more of its functions efficiently or the disclosure is for one of the purposes in connection with which the unique identifier was assigned.
An agency also shall not assign to an individual a unique identifier that has been assigned to that individual by another agency and an agency that assigns unique identifiers to individuals shall take all reasonable steps to ensure that unique identifiers are assigned only to individuals whose identity is clearly established. In the GDPR, Recital 30 states that: natural persons may be associated with online identifiers provided by their devices, applications, tools and protocols, such as internet protocol addresses, cookie identifiers or other identifiers such as radio frequency identification tags.
This may leave traces which, particularly when combined with unique identifiers and other information received by the servers, may be used to create profiles of the natural persons and identify them. We detail some of these below. Although the Privacy Commissioner encourages agencies to disclose significant breaches and seek advice about how best to manage a breach, there are currently no mandatory data breach notification requirements in New Zealand.
Mandatory data breach notification is likely to be an important feature of any reform of the Privacy Act. In contrast, the GDPR contains mandatory data breach notification requirements. Article 33 requires that in the case of a personal data breach, the controller shall, as soon as possible within 72 hours of becoming aware of it, notify the breach to the supervisory authority.
Such notification should provide the nature of the personal data breach, the number of people concerned, the name and contact details of the data protection officer, the likely consequences of the data breach, and any measures to be taken to address the breach and mitigate any adverse effects. Article 20 of the GDPR contains a right to data portability. This means that data subjects are entitled to receive the personal information they have provided in a structured, commonly used and machine- readable format and transmit the information to a competing business.
The right to data portability therefore enables data subjects to have more control over their data. There is no equivalent right currently operating in New Zealand. There are no specific conditions in the Privacy Act under which consent is required for data processing to take place. While the Privacy Act assumes, as a default, that information will be collected from the individual concerned, it does not specify the way in which consent to collect the information must be provided or differentiate between information collected from adults or children.
In contrast, consent is intrinsically important in the GDPR, with the data subject required to signal agreement by a statement or a clear affirmative action. Such consent must be freely given, specific, explicit, informed and unambiguous. Recital 32 clarifies that an affirmative action signaling consent may include ticking a box on a website but silence, pre-ticked boxes or inactivity are presumed inadequate.
In addition, a higher level of consent, described as explicit consent, is required for the processing of special categories of personal data. Article 8 includes specific provisions about consent to the processing of data concerning children. Article 21 contains the right to object to the processing of personal information.
At this point, a data controller must either cease processing or provide compelling grounds to override the objection. There are no corresponding provisions in the Privacy Act. Instead, an individual would have the option of either refusing to provide the relevant information where the information is being sought directly from the individual , or raising a complaint of interference with privacy with the agency or the Office of the Privacy Commissioner.
Article 22 of the GDPR restricts the use of automated decision-making tools where the decisions may have a legal effect and allows for an individual to seek human intervention or to contest the decision. The Privacy Act currently does not contain corresponding provisions but any use of information by automated software would need to comply with the Privacy Principles set out above.
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What is intelligence? Browse all sections. Privacy Act Purpose of the Act 8. If the person to whom the information relates requests the information, the request must be considered in accordance with the Privacy Act. Principle 6, in section 6 of the Act, gives individuals a legal right to access such personal information.
Part 4 of the Act sets out reasons why such individual access request may be refused. If another person requests the information, the request must be considered in accordance with the Official Information Act. Section 9 of that Act provides that individual privacy may justify withholding the information if there is no overriding public interest in release.
It will be important to identify and consider the strengths of all the relevant privacy interests and balance them against the strengths of the competing public interest in its release. A release by a Minister or department of information about an individual, in the absence of a request for it, is governed by Principle 11 of the Privacy Act. That principle allows only limited situations in which it would be appropriate to disclose personal information; for example: if the disclosure is directly related to the purposes for which the information was obtained; if disclosure is authorised by the individual concerned; or if disclosure is necessary to prevent a serious threat to public health or the life of another individual.
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