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Advertisers face privacy timebomb, warns ADMA

Advertisers and agencies do not understand the significant fines they face under major new changes to the Privacy Act set to take force within the next 12 months, says the Association of Data Driven Marketing and Advertising.

The organisation told Encore there is still little industry focus on how the changes will impact advertiser interactions with consumers with breaches due to attract major fines of up to $1.1m.

“There are some key changes which are worth going through, about how businesses can talk to their customers and the extent to which they have to provide opportunities for consumers to say ‘I don’t want to hear from you anymore’,” said Jodie Sangster, CEO of ADMA.

The association argues the changes will dramatically impact on both agencies and advertisers, especially those marketing online using demand-side platforms and social media.

“It will impact someone like an ad network, if they have the ability to connect the data up, or even an advertiser if they have that capacity,” said Sangster. “At the moment we are quite comfortable with the concept that if data has a name attached to it, it is considered personal information. If it doesn’t have a name attached, then it is not.”

Technology driven by demand-side platforms is allowing online advertisers to be increasingly sophisticated about how they target messages at users based on individuals’ browsing behaviour.

Under the new laws, which begin in March 2014, this definition will broaden so that any information which identifies an individual, regardless of whether their name is included, will be classed as personal information and subject to the new regime.

One group of marketers who are likely to be impacted by the changes is the not-for-profit organisations which may lack resources when it comes to legal compliance but generate funding through interactions with the public.

“For us to be able to reach members of the public is absolutely crucial, not only to our continued operations, but also for us to achieve our core aims,” said Jeanette Scott, national manager of legal, compliance and risk with The Heart Foundation.

“These changes concern me, on a personal level, because they place some significant obligations on organisations. A lot of charities and NGOs (non-governmental organisations) are going to have to brief out and pay external lawyers and be very cautious about reviewing their compliance regimes.”

Professor Michael Fraser at the University of Technology Sydney said the changes have long been mooted, but there is a greater role for the Office of the Australian Information Commissioner(OAIC) in raising awareness.

“I can understand (industry) concerns but it’s not as if this has come out of the blue,” said Fraser, who is the director of the university’s communications law centre.

“It is important that we socialise these changes into the community and help business, including marketers, have confidence to invest in the upgrades that will be required.”

Fraser said part of the problem was that the OAIC had not been given additional funding to make business aware of the changes.

“I do note that the privacy commissioner did not get any extra funding for the roll out and to prepare the community for these changes – it is a big job. It would be really helpful to publish guidelines and best practice notices so people could have confidence in what preparations to make.”

Australian Privacy Commissioner Timothy Pilgrim told Encore his office had received no additional funding to help educate the community about the changes but says regardless, it was developing materials to help guide business through the reforms.

“One of the key tasks for the OAIC is the development of guidance to assist organisations and agencies comply with the new laws. It is anticipated that this guidance will be made available in the next six months,” said Pilgrim.

Sangster said her main concern remains the potential for advertisers to incur fines and the lack of clarity over who would enforce the new laws.

While the OAIC has broad oversight, the Australian Communications and Media Authority (ACMA) is also likely to have some oversight in the telecommunications sector.

“ACMA will play a role in enforcing anyone who falls under the telecommunications act which covers IT, telcos etc,” said Sangster.

“The whole legal landscape (around the changes) is just not simple because it falls under so many different regulators now.”

ADMA said one of the biggest issues remains the issue of fines and how they will be enforced.

“There are fines being introduced of (up to) $1.1 million dollars,” Sangster said. “It can be defined broadly or narrowly per incident or per record. Marketers are going to have to go through with a fine tooth comb and look at some of the key areas – it’s not business as usual.”

Nic Christensen 

Encore Issue 9This story first appeared in the weekly edition of Encore available for iPad and Android tablets. Visit encore.com.au for a preview of the app or click below to download.

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