Australia: IAB publishes response to Privacy Act Review Report
The Interactive Advertising Bureau ('IAB') of Australia, published, on 13 April 2023, its reponse to the Attorney General Department's Privacy Act Review Report 2022, expressing concerns that the proposals set forth in the Report could severely restrict digital advertising and online publishers' and platforms' ability to provide free content and services to consumers. In particular, IAB Australia stated that according to the CEO of IAB Australia, Gai Le Roy, "while the Report strikes the right balance in several areas, its proposals for digital advertising, targeting and trading in particular, are too broadly scoped and inconsistent with international approaches". In this regard, IAB Australia further noted that Le Roy has expressed that "reforms should provide businesses further clarity that low-risk operational activities that fall within consumers' expectations are not unnecessarily restricted. These activities should at a minimum include data processing (including data segmentation), measurement, analytics, and research".
Moreover, IAB Australia's response also notes the following:
- the Report's proposal on direct marketing requires clarification in relation to its operation as well as how it relates to other proposals in the Report, including the targeting proposal;
- IAB Australia does not support the proposals in relation to 'targeting' more broadly, which are believed to go beyond regulating privacy harms, noting that where advertising practices give rise to consumer law or other advertising harms, they should be addressed under the regulatory frameworks that deal with those issues;
- IAB Australia supports the Report's proposed move away from a consent-centric approach to privacy regulation and accepts that organisations must take greater responsibility for the management and handling of data, however it notes that if a 'fair and reasonable' test is introduced into the Privacy Act 1988 ('the Act'), a legitimate interests style provision should also be introduced to ensure that the reforms in Australia are consistent with (rather than more restrictive than) equivalent jurisdictions overseas such as the EU, UK, and Singapore;
- clarification is required in relation to the proposed amendments to the definition of consent and IAB Australia strongly opposes any amendments that would require opt-in consent (if that is intended), and does not support any amendments that would result in increased consent fatigue;
- in line with a move away from a consent-centric approach to privacy, IAB Australia does not support the proposal that the broad range of activities that fall under the proposed definition of 'trading' should require consent, noting that this does not reflect the case in the EU, UK, or California; and
- IAB Australia supports the proposed definition of de-identification, however it notes that any obligations in relation to de-identified information should reflect the fact that the information is de-identified.