The Land Down Under is finally getting a data breach notification law. This should come as a surprise to many since (a) many would have assumed that Australia already has one and (b) it’s 2017 – unless you’re a war-ravaged country, chances you have a breach notification law. Because that’s how bad things are on the internet.
And despite the country taking it’s time on formulating a notification law that they can live with, one has to wonder if they’ve thought things through.
Applies to Entities Covered by the Privacy Act
If you will, the new data breach notification law is an extension of Australia’s Privacy Act because the new legislation applies only to those entities that are governed by it. That is people – real or legal – that are NOT:
- Doing less than AUS $3million in sales p.a.,
- A political party,
- Part of the government.
If not one of the above, the new law applies to you.
Now, the government excusing themselves from following the legal obligations they place on others is nothing new. Plenty of countries do it, although not all: in the UK, for example, the government also has to reveal their data security shortcomings, be it the National Health Service, members of the judiciary, etc.
The USA has also done the same. The Veteran Affairs department is constantly embroiled in hacks and other breaches. Likewise, other US state and federal departments have gone public with data breaches.
But then again, not all countries follow the same level of transparency. So, Australia can be excused if it feels like not leading by example. It will be in excellent company either way.
Turnover of $3 Million
However, one has to take exception to not covering small businesses that make less than $3 million in a year. Hard-working, financially-pressed mom-and-pop stores should be given a break; anyone knows that, when hacked, doing right by a data breach law can be expensive and time-consuming. Even Fortune 500 companies have problems with it, and they have money and personnel to spare for such things. (Well, not really – but they easily find the money and personnel to take care of it).
But, by excluding small businesses, there is the tacit implication that they couldn’t be embroiled in a huge data breach, especially if they’re not making much in the way of sales. What if you’re a “successful” internet startup that’s financing your venture on borrowed money? In that case, sales figures would be $0. Employee count could be less than twenty, which coincides with a small business . But your customer base is a gazillion.
A breach of this business’s customer database would be tremendous. (For example, Instagram had 13 employees when it was acquired by Facebook and, if memory serves, had zero dollars in sales because it was still funding itself via venture capital. Monetization didn’t come until later). Under the circumstances, the Privacy Act would not apply to would-be Australian Instagrams (Instagrammers? Instagrammies?). Shouldn’t an exception be made for such a small business?
It seems like a clause that introduces dependencies on the number of people affected by the data breach should have been included (or kept) before the law was approved.
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