‘Not workable’: The media and advertising industry responds to Privacy Act shake-up

In response to the proposed overhaul of privacy regulation in February, the Australian media and advertising industry has warned the government that it is ridden with “impracticality”, “unintended consequences” and could lead to “an abuse of process”.

The Attorney-General’s Department sought public feedback on the proposed updates with a submission deadline of 31 March. However, most organisations were granted an extension until early April.

While a number of media and advertising organisations were in principle in support of the review, they share a few concerns. Among those was the re-definition of direct marketing, targeting and trading, which several industry submissions have suggested to be too “broad”.

Beyond semantics

IAB Australia submitted that the current proposal for targeted advertising is “not workable”, suggesting that what the industry referred to as “targeting” is different from the type that gives rise to privacy harm or what a consumer has in mind.

“The industry, when it talks about targeting, refers to a range of practices aimed at tailoring content to the most appropriate audiences, including very broad segmentation, based on information or data that doesn’t reasonably identify a person, and including for operational purposes and basic functions,” the submission read.

It agreed that what consumers generally understand as “targeted adverting”, namely, one-to-one targeting, should be regulated. However, it has already been captured under the “direct marketing” section of the proposal.

The Association for Data-driven Marketing and Advertising (ADMA) submitted that the definition of “trading” is also ambiguous.

For example, there was general confusion about whether practices like sharing IDs with clean rooms for resolution/data enrichment or automated data trading to third parties for digital and e-commerce functions fall under the new definition.

“ADMA recommends the definition of trading be clarified to remove uncertainty and that the AGD consult with Industry to better understand some use case scenarios for the purpose of ensuring regulatory development is practical and able to be applied to responsible business practices as they exist today,” the submission read.

Consent-based approaches

Another area that attracted some heated discussion was consumers’ new-found rights to opt out of targeted advertising and direct marketing and rights to access, erase and de-index their personal information.

For example, the Australian Association of National Advertisers (AANA) submitted that the measure of being able to opt out of target advertising would prevent children and vulnerable groups from being protected from ads like alcohol and gambling and lower ad effectiveness.

“This will be to the detriment of small business, charities and NGOs as personalisation makes advertising relevant to the user and therefore more effective and helps businesses find customers and grow their business,” the submission read.

IAB Australia further submitted that certain steps need to be taken for a direct right to action to be implemented in “instances where it is not operationally or technically feasible to delete the personal information, conflicting legal requirements and other business purposes, and instances where requests may note be genuine or lead to an abuse of process”.

“We do not think a direct right of action is the best way to achieve the Government’s goals in relation to privacy reform and in fact, there may be some risk that extending enforcement to include a private right of action will have unintended consequences.

“However, if a direct right of action is introduced, it should be subject to a seriousness threshold.”

Chris Brinkworth, managing partner of privacy consultancy Civic Data, said the company’s submission stressed the importance of digital economy stakeholders, legal experts, privacy advocates and the government working together with the transition into new laws.

For example, he said, managing the opt-out mechanism across various platforms and devices involves providing users with an easy-to-navigate interface to input their choices and making sure that businesses and government agencies respect that across their touchpoints.

Hence, recognising the “interlocking nature” of Australia’s digital ecosystem while also respecting consent choices is essential, he said.

What about journalism?

Beyond advertising, media owners have other concerns about the new privacy proposals. Dan Stinton, managing director of Guardian Australia, told Mumbrella that despite the review’s merit, a few proposed reforms will impact how journalists do their jobs.

Dan Stinton, managing director of Guardian Australia

“The Guardian supports the Privacy Act review and the need to strengthen Australia’s privacy regime to better protect consumers for the digital age, and to bring us up to adequacy with GDPR in Europe and CPRA in California and the US,” he said.

“We strongly support adopting the proposed fair and reasonable test for the collection, use and disclosure of personal information as this would simplify other provisions in the privacy act.

“We are concerned, however, about some of the proposed reforms impacting our journalism. Specifically, the proposed statutory tort and the direct right of action would significantly hamper the media’s ability to publish the identity of wealthy business people or celebrities in coverage of matters that are of public interest.”

Guardian Australia is a member of Australia’s Right to Know, a media coalition of major Australian publishers whose collective stance was also strongly against the measures.

The federal government started its review of the Privacy Act in 2020,  having been announced as part of a response to the Australian Consumer and Competition Commission’s (ACCC) Digital Platforms Inquiry.

The Attorney-General is expected to respond to the submissions formally.


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