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The following news feed provides an overview of the current activities and news from APPA members.

The articles on this page are updated regularly from members’ news and media pages. If you have any questions or concerns about the content contained in the articles, please contact the respective member. You can locate members’ details underneath each article or on our Contact us page.

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FTC and States Combat Fraudulent Charities That Falsely Claim to Help Veterans and Servicemembers

The Federal Trade Commission, along with law enforcement officials and charity regulators from 70 offices in every state, the District of Columbia, American Samoa, Guam and Puerto Rico, announced more than 100 actions and a consumer education initiative in “Operation Donate with Honor,” a crackdown on fraudulent charities that con consumers by falsely promising their donations will help veterans and servicemembers.

“Americans are grateful for the sacrifices made by those who serve in the U.S. armed forces,” said FTC Chairman Joe Simons. “Sadly, some con artists prey on that gratitude, using lies and deception to line their own pockets. In the process, they harm not only well-meaning donors, but also the many legitimate charities that actually do great work on behalf of veterans and servicemembers.”

The FTC planned this ongoing effort with the National Association of State Charity Officials (NASCO). The initiative includes an education campaign, in English and Spanish, to help consumers recognize charitable solicitation fraud and identify legitimate charities.

 

Connecticut Attorney General George Jepsen said, “Time and again, state attorneys general have come together on matters of national importance to enforce, educate and advocate on behalf of our residents. Charities fraud of any kind is abhorrent, and veterans charities fraud is especially upsetting. This campaign will offer important resources to help donors identify charities that match their own values.”

Nebraska Attorney General Doug Peterson said, “While the enforcement actions announced today represent some truly bad actors in the charitable sector, the vast majority of charitable organizations do good and important work. I urge donors to use the resources highlighted in today’s announcement and to donate with confidence in support of our military and veterans.”

“Not only do fraudulent charities steal money from patriotic Americans, they also discourage contributors from donating to real Veterans’ charities,” said Peter O’Rourke, Acting Secretary for the U.S. Department of Veterans Affairs. “The FTC’s Operation Donate with Honor campaign will help educate citizens on how to identify organizations that misrepresent themselves as legitimate veterans charities, and those who, by contrast, truly help our nation’s heroes. I commend the FTC and its state partners for taking strong action on this important issue.”

Operation Donate with Honor - Which veterans group would you donate to?  American Disabled Veterans Foundation, National Vietnam Veterans Foudnation, Healing American Heroes, Inc., Veterans Fighting Breast Cancer, Military Families of America, VietNow National Headquarters, Inc., Foundation for American Veterans, Inc., Healing Heroes Network, Help the Vets, Inc. They have all been sued for lying to donors. Don't depend on the name. Do your research. Then donate.Help the Vets

Neil G. “Paul” Paulson, Sr. and Help the Vets, Inc., (HTV) will be banned from soliciting charitable contributions under settlements with the FTC and the states of Florida, California, Maryland, Minnesota, Ohio and Oregon, for falsely promising donors their contributions would help wounded and disabled veterans.

Operating under names such as American Disabled Veterans Foundation, Military Families of America, Veterans Emergency Blood Bank, Vets Fighting Breast Cancer, and Veterans Fighting Breast Cancer, HTV falsely claimed to fund medical care, a suicide prevention program, retreats for veterans recuperating from stress, and veterans fighting breast cancer. It also falsely claimed a “gold” rating by GuideStar, which provides information about nonprofits.

One letter signed by Paulson stated, “But for thousands of disabled veterans who served in Iraq and Afghanistan, giving an arm and a leg isn’t simply a figure of speech – it’s a harsh reality. . . . Your $10 gift will mean so much to a disabled veteran.” But according to the FTC’s complaint, HTV did not help disabled veterans, and 95 percent of every donation was spent on fundraising, administrative expenses, and Paulson’s salary and benefits.

The defendants are charged with violating the FTC Act, the FTC’s Telemarketing Sales Rule, and laws of the six states.

In addition to the ban on soliciting charitable contributions, the proposed settlement order bans Paulson from charity management and oversight of charitable assets. To ensure that donors to HTV are not victimized again, HTV and Paulson must destroy all donor lists and notify their fundraisers to do so.

The order imposes a judgment of $20.4 million, which represents consumers’ donations from 2014 through 2017, when HTV stopped operating. The judgment will be partially suspended when the defendants have paid a charitable contribution to one or more legitimate veterans charities recommended by the states and approved by the court.  Paulson must pay $1.75 million – more than double what he was paid by HTV – and HTV must pay all of its remaining funds, $72,000.

Veterans of America

The FTC charged Travis Deloy Peterson with using fake veterans’ charities and illegal robocalls to get people to donate cars, boats and other things of value, which he then sold for his own benefit.

The scheme used various names, including Veterans of America, Vehicles for Veterans LLC, Saving Our Soldiers, Donate Your Car, Donate That Car LLC, Act of Valor, and Medal of Honor. Peterson allegedly made millions of robocalls asking people to donate automobiles, watercraft, real estate, and timeshares, falsely claiming that donations would go to veterans charities and were tax deductible.

In fact, none of the names used in the robocalls is a real charity with tax exempt status. Peterson is charged with violating the FTC Act and the FTC’s Telemarketing Sales Rule.

At the FTC’s request, a federal court issued a temporary restraining order prohibiting Peterson from making unlawful robocalls or engaging in misrepresentations about charitable donations while the FTC’s enforcement action is proceeding.

State Enforcement Actions

In the state actions announced today, charities and fundraisers sought donations online and via telemarketing, direct mail, door-to-door contacts, and at retail stores, falsely promising to help homeless and disabled veterans, to provide veterans with employment counseling, mental health counseling or other assistance, and to send care packages to deployed servicemembers.

Some actions charged veterans charities with using deceptive prize promotion solicitations. Others targeted non-charities that falsely claimed that donations would be tax deductible. Some cases focused on veterans charities engaged in flagrant self-dealing to benefit individuals running the charity, and some alleged that fundraisers made misrepresentations on behalf of veterans charities or stole money solicited for a veterans charity. 

Maryland Secretary of State John Wobensmith said, “Scam artists are on the prowl, ready to take advantage of donors who want to help veterans. Make sure your donations go to reputable, well-established charities.”

How to donate wisely and avoid scams - 1. Look up a charity's report & ratings (give.org, guidestar.org, charitywatch.org, charitynavigator.org). 2. never pay by gift card or wire transfer. Credit card and check are safer. 3. Watch out for names that only look like well-known charities. 4. Search the charity name online. Do people say it's a scam? 5. Ask how much of your donation goes to the program you want to support. 6. Donating online? Be sure where that money is going. Federal Trade Commission - ftc.gov/charity.Nationwide education campaign to help consumers donate wisely

The FTC and its state partners are launching an education campaign to help consumers avoid charity scams and donate wisely. The FTC has new educational materials, including a video on how to research charities, and two new infographics. Donors and business owners can find information to help them donate wisely and make their donations count at FTC.gov/Charity. New and updated guidance includes:

For donors:

For businesses:

The Commission wishes to thank the National Association of Attorneys General and the NAAG Charities Committee for supporting this effort.

The Commission vote authorizing the staff to file the complaint and proposed stipulated final order against Paulson and HTV was 5-0. The documents were filed in the U.S. District Court for the Middle District of Florida, Orlando Division. The proposed order is subject to court approval. The Commission vote approving the complaint against Peterson was 5-0. The U.S. District Court for the District of Utah, Central Division, entered a temporary restraining order on July 10, 2018.

NOTE: The Commission files a complaint when it has “reason to believe” that the law has been or is being violated and it appears to the Commission that a proceeding is in the public interest. The case will be decided by the court. Stipulated orders have the force of law when approved and signed by the District Court judge.

The Federal Trade Commission works to promote competition, and protect and educate consumers. You can learn more about consumer topics and file a consumer complaint online or by calling 1-877-FTC-HELP (382-4357). Like the FTC on Facebook, follow us on Twitter, read our blogs and subscribe to press releases for the latest FTC news and resources.

Federal Trade Commission, United States
Source: Press Release Feed
19 Jul 2018, 10:00pm AEST

FTC Requests Public Comment on Alimentation Couche-Tard Inc.’s Application to Approve Sale of a Retail Fuel Station in Saint Paul, Minnesota

The Federal Trade Commission is currently accepting public comments on an application by Alimentation Couche-Tard Inc., or ACT, to divest a retail fuel station in Saint Paul, Minn. to Twin City Petroleum & Property LLC.

In May, ACT asked the Commission to approve divestiture of the fuel station, located at 1015 Geneva Ave. N., and two others in Minnesota to Andeavor Corporation. ACT now asks that the Commission instead approve the divesture of the Geneva Ave. retail fuel station to Twin City Petroleum & Property LLC.

Under the FTC’s Feb. 16, 2018 final order settling charges that ACT’s proposed acquisition of Holiday Companies would violate federal antitrust law, ACT is required to divest 10 fuel stations, seven in Minnesota and three in Wisconsin. In addition to requesting in May that the Commission approve the divestiture to Andeavor of three Minnesota fuel stations, in June, ACT requested that the Commission approve divestiture of four more stations in Minnesota and three in Wisconsin to Molo Oil Company and Twin City Petroleum.

The Commission will decide whether to approve this application after a 30-day public comment period, which expires on Aug. 17, 2018. Comments can be filed electronically or sent to: FTC Office of the Secretary, 600 Pennsylvania Ave., N.W., Washington. (FTC File No. 1710184; the staff contact is Elizabeth Piotrowski, Bureau of Competition, 202-326-2623.)

The Federal Trade Commission works to promote competition, and protect and educate consumers. You can learn more about how competition benefits consumers or file an antitrust complaint. Like the FTC on Facebook, follow us on Twitter, read our blogs and subscribe to press releases for the latest FTC news and resources.

Federal Trade Commission, United States
Source: Press Release Feed
18 Jul 2018, 10:00pm AEST

FTC Testifies before House Energy and Commerce Subcommittee about Agency’s Work to Protect Consumers, Promote Competition, and Maximize Resources

In testimony before the U.S. House Energy and Commerce Subcommittee on Digital Commerce and Consumer Protection, the Federal Trade Commission described its work to protect consumers and promote competition, and stressed the agency’s commitment to maximizing its resources, enhancing its effectiveness, and anticipating and responding to changes in the marketplace.

Testifying on behalf of the Commission, FTC Chairman Joe Simons and Commissioners Maureen K. OhlhausenNoah Joshua Phillips, Rohit Chopra, and Rebecca Kelly Slaughter noted that during FY 2017, the Commission returned over $543 million in redress to consumers and deposited $94 million into the U.S. Treasury, reflecting collections in both consumer protection and competition matters. In addition, in FY 2017, FTC orders in the Volkswagen, Amazon, and Net Spend matters required defendants to self-administer consumer refund programs worth more than $11.5 billion.

The FTC complements its enforcement efforts through policy and research work, and advocacy and education initiatives, the testimony notes. Most recently, the Commission announced its Hearings on Competition and Consumer Protection in the 21st Century, which will begin this fall and explore whether broad-based changes in the economy, evolving business practices, new technologies, or international developments might require adjustments to competition and consumer protection law, enforcement priorities, and policy.

According to the testimony, consumer privacy and data security will continue to be an enforcement priority at the FTC, and the agency will use every tool at its disposal to redress consumer harm. To date, the Commission has brought more than 60 cases alleging that companies failed to implement reasonable safeguards, as well as more than 50 general privacy cases.

For example, the Commission recently announced an expanded settlement with ride sharing platform company Uber Technologies related to the company’s data security practices, and a settlement with PayPal, Inc. over its privacy practices. The agency also announced its first children’s privacy case involving Internet-connected toys, a settlement that imposed a $650,000 civil penalty on electronic toy manufacturer VTech Electronics for violations of the Children’s Online Privacy Protection Rule. The FTC also is committed to the success of the EU-U.S. Privacy Shield Framework, a critical tool for protecting privacy and enabling cross-border data flows, the testimony stated.

However, the testimony also noted that the main statute enforced by the Commission, Section 5 of the FTC Act, cannot address all privacy and data security concerns in the marketplace. Section 5 does not provide for civil penalties, reducing the Commission’s deterrent capability. In addition, the Commission also lacks authority over non-profits and over common carrier activity, and it lacks broad APA rulemaking authority for privacy and data security generally. The testimony reiterated the FTC’s longstanding bipartisan call for comprehensive data security legislation.

“In my view, we need more authority. I support data security legislation that would give us three things: (1) the ability to seek civil penalties to effectively deter unlawful conduct, (2) jurisdiction over non-profits and common carriers, and (3) the authority to issue implementing rules under the Administrative Procedure Act. And we should consider additional privacy authority as well,” Simons said in separate oral remarks before the Subcommittee. “Make no mistake however: under my leadership, privacy and data security will continue to be an enforcement priority, and the FTC will use every tool in our arsenal to redress consumer harm to the extent we can.”

The testimony also describes the FTC’s recent work to ensure that advertising is truthful and not misleading, which allows consumers to make the best use of their resources and promotes competition by companies on a level playing field. This past year, the agency has continued to bring cases challenging false claims in the financial area, as well as false and unsubstantiated health claims, including those targeting older consumers, consumers affected by the opioid crisis, and consumers with serious medical conditions. 

Fighting fraud continues to be a major focus of the FTC’s law enforcement efforts, the testimony states. The Commission’s anti-fraud program attempts to track down and stop some of the most egregious scams that prey on U.S. consumers. During the past year, the FTC joined with other law enforcement agencies in coordinated crackdowns on tech support scams, as well as a separate initiative to stop scams that target small businesses. The FTC also strives to stay ahead of scammers, who are always on the lookout for new ways to market old schemes, the testimony stated. The agency hosted a workshop to explore how scammers are exploiting public interest in cryptocurrencies. It also has worked to educate consumers about cryptocurrencies, and halted one scam called Bitcoin Funding Team that told victims they could pay with cryptocurrency.

The testimony also noted the FTC’s ongoing work to combat illegal robocalls, which were responsible for more than 4.5 million complaints to the agency in FY 2017. The agency has used many methods to fight these illegal calls. Still, technological advances have allowed bad actors to place millions or even billions of calls, often from abroad, at very low cost, and in ways that are difficult to trace. The testimony notes that the Commission has testified for many years in favor of eliminating the common carrier exemption, which it believes is outdated and no longer makes sense in today’s marketplace.

The testimony also describes the FTC’s work to preserve and promote competition in sectors of the economy that directly affect consumers and their pocketbooks, such as health care, consumer products and services, technology, manufacturing, and energy. Since the beginning of FY 2016, the Commission has challenged 53 mergers. Many were resolved through divestiture settlements, but the Commission voted to initiate litigation to block seven mergers. Three of those challenges ended successfully when the parties abandoned the transactions after the Commission initiated litigation, while four others are still being litigated.

The testimony also noted the FTC’s ongoing efforts to challenge anticompetitive conduct by drug manufacturers. In one FTC case, a federal court recently ruled that the pharmaceutical company AbbVie Inc. used sham litigation to illegally maintain its monopoly over the testosterone replacement drug Androgel, and ordered $448 million in monetary relief to consumers. In another case, the Commission obtained a stipulated order in which Mallinckrodt ARD Inc. agreed to pay $100 million and divest assets to settle charges that it had illegally acquired the rights to develop a drug that threatened its monopoly in the U.S. market for a specialty drug used to treat a rare seizure disorder afflicting infants.

According to the testimony, the FTC is closely following activity in the high-technology sector, which has brought many consumer benefits, but also has raised complex and sometimes novel competition issues. It is critical that the agency understand current and developing business models and scrutinize incumbents’ conduct to ensure that they abide by the same rules of competitive markets that apply to any company, the testimony states.

The Commission vote approving the testimony and its inclusion in the formal record was 5-0.

The Federal Trade Commission works to promote competition, and protect and educate consumers. You can learn more about how competition benefits consumers or file an antitrust complaint. Like the FTC on Facebook, follow us on Twitter, read our blogs and subscribe to press releases for the latest FTC news and resources.

Federal Trade Commission, United States
Source: Press Release Feed
18 Jul 2018, 10:00pm AEST

My Health Record opt-out period has commenced

From today until 15 October 2018, you have the choice to advise the Australian Digital Health Agency (ADHA) if you do not want a My Health Record to be automatically created for you.

Office of the Australian Information Commissioner
Source: News - OAIC
16 Jul 2018, 12:11am AEST

Statement from BC Information and Privacy Commissioner on Supreme Court decision in British Columbia v. Philip Morris International, Inc.

The Supreme Court has held that the province of BC will not be compelled to provide the personal health records of millions of British Columbians to Phillip Morris

Office of the Information and Privacy Commissioner, British Columbia
Source: OIPC News and Events
14 Jul 2018, 6:00am AEST

Meeting with privacy peers in Europe and America

The importance of international collaboration in privacy and data protection continues to increase. Our news feeds and inboxes have been filled with the new European data protection regulations, the GDPR, in recent months, as well as compliance and enforcement issues over data giants who cross borders and collect personal information from billions of people.

New Zealand participates in a number of networks which have data protection or privacy as their core connector, or as a component. My staff regularly join telephone conferences with colleagues around the Pacific for the Global Privacy Enforcement Network (GPEN). Assistant Commissioner Blair Stewart is New Zealand’s delegate to the APEC Data Privacy Subgroup, which is this year meeting Papua New Guinea.  We participate in initiatives from the Organisation for Economic Co-operation and Development, and last year New Zealand concluded a three year term as Chair of the International Conference of Data Protection and Privacy Professionals.

One forum we haven’t participated in to date is the Council of Europe. Obviously enough, you might say – we are after all about as far from Europe as it is possible to be!

The Council of Europe is Europe’s leading human rights institution with 47 member states (compared with 28 members of the European Union).

The Council of Europe website

The Council of Europe’s headquarters in Strasbourg, France.

The Council of Europe’s headquarters in Strasbourg, France.

The Council is home to the only international treaty on data protection, the “Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data”, known as Convention 108. Signatories to the Convention undertake to enact local laws meeting their treaty commitments.  It has been a slow burner. It has been open for accession since 1981, but only a handful of non-European nations have signed up. However in recent years the pace has picked up. Recent accessions include Mauritius, Mexico, Cabo Verde, Tunisia, and Uruguay, with Morocco, Burkina Faso, and Argentina invited to join.

New Zealand applied for and gained “observer” status in 2017, and last month I attended the 36th Plenary Meeting of the Committee of Convention 108 as part of a process to investigate whether I should recommend that the New Zealand Government apply to accede to the convention.

Council of Europe logo projected over image of European continent

The opening of the 36th Plenary Meeting of the Committee of Convention 108.

The meeting was held in Strasbourg, France, headquarters of the Council of Europe, and European Parliament. It was a working meeting, at which members and observers debated the detail of recommendations and papers ranging from artificial intelligence (something of a theme in for 2018 in international data protection circles) to the protection of health data, and the relationship between the convention and other arrangements for international cooperation such as the Conference of Data Protection and Privacy Commissioners, and the Internet Corporation for Assigned Names and Numbers.

A dark street lined with stone buildings. A french flag hangs from one.

A Strasbourg street in the evening.

Most interesting for me was the presence of a wide range of non-European state observers (the committee also approves non-governmental observers such as Privacy International, the Privacy Foundation, and The International Committee of the Red Cross).

This year the Convention has been modernized and updated, and the new convention (108+) will soon be open for signature.

Representatives from Africa, Asia and South America were present to participate in the proceedings in Strasbourg and find out about the effects of 108+ and its relationship with the GDPR. Some, such as Korea and Japan are in the process of seeking adequacy status with European rules (which New Zealand achieved in 2012) and were interested in determining whether they should also accede to 108+. Argentina, which like New Zealand also has adequacy status, is interested in studying 108+ and possibly signing up as a commitment to maintaining adequacy (all EU adequate countries will be subject to a “post-GDPR” review within the next 4 years). Israel, also adequate, is looking at 108+ for similar reasons. Ghana and Senegal are interested in demonstrating their commitment to human rights, but are also looking at 108+ because of the economic benefits that come with opening up their countries to the world. Mauritius, also driven by business demands to freely trade with Europe, acceded to the 108 and committed to 108+.

A sign reading "Nle Zelande"

New Zealand’s seat at the Council of Europe. The Council granted New Zealand “observer” status in 2017.

There are a number of gaps in international law at the moment that complicate international trade in the digital economy. Convention 108+ has potential to fill some of those gaps and set a new international standard. The current state of New Zealand law would prevent us from taking on the legal obligations of 108+, but with the Privacy Bill currently before the Justice Select Committee, we have a singular opportunity to bring our law closer to what may well emerge as a benchmark.

My trip to Strasbourg was opportunistic, in that it coincided nicely with the 49th Asia Pacific Privacy Authorities (APPA) meeting in San Francisco. Hosted by the US Federal Trade Commission, delegates took the opportunity of the proximity of Silicon Valley to hear about emerging issues in data protection and privacy in tech, with artificial intelligence again high on the agenda.

A powerpoint slide showing a Venn diagram

A presentation at the 49th Asia Pacific Privacy Authorities (APPA) meeting in San Francisco.

While we were there, California (the fifth largest economy in the world!) passed a privacy law comparable to those in Europe and its northern neighbours.

More info: "Big Tech Plans to Fight Back Against California's Sweeping New Data Privacy Law"

In addition to the formal APPA proceedings (which my colleague General Counsel Jane Foster will be posting about shortly) these meetings always represent an opportunity to catch up with representatives from Google, Apple (including a very special visit to their extraordinary new headquarters) and Facebook.

The Facebook meeting was the first opportunity to discuss with senior executives, the jurisdictional issues which became disputed in New Zealand earlier in the year. It is very good to see that from 14 July the terms and conditions under which Facebook provides services to New Zealand citizens will include a provision noting the company’s commitment to applying the law in the jurisdiction of operation.

Read Facebook’s new terms and data policy

An advertisement that reads "Data misuse is not your friend."

An advertisement for Facebook that I spotted in San Francisco

Office of the Privacy Commissioner, New Zealand
Source: Blog
10 Jul 2018, 8:26am AEST

Unleashing Potential in Innovation and Technology - Promoting Data Privacy Protection Award Presentation Ceremony of Student Ambassador for Privacy Protection Programme

Office of the Privacy Commissioner for Personal Data, Hong Kong
Source: Office of the Privacy Commissioner for Personal Data
8 Jul 2018, 10:00am AEST

Privacy Commissioner Expresses Concerns Over Typeform's Data Breach Incident (Chinese Version Only)

Office of the Privacy Commissioner for Personal Data, Hong Kong
Source: Office of the Privacy Commissioner for Personal Data
7 Jul 2018, 10:00am AEST

Tribunal strikes out privacy case

A recent privacy case shows it is in nobody’s interests to waste the Human Rights Review Tribunal’s time.

After filing her original claim in 2016, the plaintiff made a number of subsequent applications to the Tribunal on various matters. At one juncture, the Tribunal directed her not to file any more applications without leave – and yet she continued to do so.

A week before the Tribunal hearing, the plaintiff made an application seeking an adjournment because her lawyer would be unavailable on the day, plus she wanted to file new proceedings that expanded her original privacy claim.

Complaint to Privacy Commissioner

Before her case (NZHRRT25) was put to the Tribunal, our office investigated the plaintiff’s complaint. We found there had been no breach of principle 6 or section 40 of the Act, and that no information had been withheld from her. As is our usual process, we issued a certificate of investigation to the plaintiff. The plaintiff then exercised her right to take her case to the Tribunal.

If we have not investigated an aspect of a complaint, the plaintiff cannot bring that aspect to the Tribunal. Just because the plaintiff raised something in his or her complaint (or would have liked to) does not mean the Tribunal can consider it. Some of the plaintiff’s applications to the Tribunal fell within this category.

Adjournment declined

The Tribunal declined the plaintiff’s application for an adjournment. It noted in its decision that because of the resource pressures upon the Tribunal and the long delays that litigants endure waiting for hearings, applications for adjournments shortly before hearings are due to begin require careful consideration.

The Tribunal’s Co-Chairperson noted: “While the assistance of legal counsel at a hearing is greatly valued, it is the norm in the Tribunal for litigants to be self-represented. The Tribunal’s proceedings are flexible and relatively informal and able to accommodate self-representation.”

On the matter of the plaintiff’s wish to amend her claim, the Co-Chairperson said:

“An amended claim in the terms proposed would necessitate essentially starting again with proceedings … an amended reply would be required, further discovery, amended briefs of evidence etc. Given the length of time the claim … has been before the Tribunal and the fact that the hearing is but two working days away, I am not persuaded that it is fair of reasonable to grant an adjournment for this purpose.”

The hearing

At the hearing, after the plaintiff completed giving her evidence, the lawyer for the defendant sought to cross-examine the plaintiff. But the plaintiff refused to answer questions put to her by the lawyer. She then maintained and confirmed her refusal to do so, saying she had insufficient time to prepare for self-representation and that she believed she would not get a fair hearing without legal representation.

The Tribunal then considered an application by the defence to strike out the case. In its decision the Tribunal noted that the overall purpose of the provisions in the Evidence Act 2006 concerning cross-examination is to promote accurate fact finding by the court or tribunal and to ensure a fair hearing by both parties.

The Tribunal said the accounts of both the plaintiff and the defendant contradicted each other on significant matters, with the plaintiff alleging in strong terms that the defendant had lied, withheld information, and included “faked” information in his evidence.

The refusal to submit to cross examination undermined the fundamental principle of fairness, especially since the plaintiff was the only witness to give evidence in support of her case. The plaintiff’s refusal to allow herself to be cross-examined allowed the defendant “…no fair opportunity to test the veracity of her evidence. This was unfair and prejudicial to [the defendant] in light of the serious factual allegations made against him in [the plaintiff’s] evidence in chief.”

The Tribunal concluded the plaintiff’s refusal to be cross-examined effectively prevented it from fact-finding in this hearing and denied the defendant a right to be heard in defence of the allegations made against him. The evidence of the plaintiff could not be accepted and her steadfast refusal to be cross-examined meant the application to strike out the case was granted. 

Image credit: Great Auk via John J Audubon's Birds of America

 

Office of the Privacy Commissioner, New Zealand
Source: Blog
4 Jul 2018, 8:24am AEST

Commencement of the Australian Government Agencies Privacy Code

The Australian Government Agencies Privacy Code (the Code) came into effect on 1 July 2018, requiring Australian Government Agencies to move to a best practice approach to privacy governance across the APS, with the ongoing support of the Office of the Australian Information Commissioner (OAIC).

Office of the Australian Information Commissioner
Source: News - OAIC
1 Jul 2018, 11:53pm AEST

Statement from BC Information and Privacy Commissioner on report to the House of Commons recommending changes to federal privacy legislation

On June 19, the Parliamentary Standing Committee on Access to Information, Privacy and Ethics released a report entitled Addressing Digital Privacy Vulnerabilities and Potential Threats to Canada’s Democratic Electoral Process. The report was issued as part of the Committee’s work studying the privacy breach involving Cambridge Analytica and Facebook.

Office of the Information and Privacy Commissioner, British Columbia
Source: OIPC News and Events
22 Jun 2018, 6:00am AEST

Kim Dotcom v Crown Law Office

In a recent decision, the Human Rights Review Tribunal had to decide whether the transfer of Kim Dotcom’s requests for personal information to the Attorney-General was permitted under section 39 of the Privacy Act and, if it was, whether there was a proper basis for the subsequent refusal of the requests.

In July 2015, Mr Dotcom requested all personal information about him (including information in his previous names) from nearly every government department. Nearly all the Crown agencies transferred their requests to the Attorney General. Mr Dotcom’s requests were refused under section 29(i)(j) of the Privacy Act on the basis that they were vexatious and, due to their broad scope, included information that was trivial.

Transfer of requests

The Crown argued that the Attorney-General was best placed to deal with the information requests in the context of ongoing litigation. However, in hearing the case, the Tribunal considered that section 39(b)(ii) did not allow information privacy requests to be transferred in the context of the Crown’s overall litigation strategy. It determined that the information in question was not more closely connected to the functions or activities of the Attorney-General.

The Tribunal referred to the October 2014 High Court decision Dotcom v USA, where Justice France noted that Mr Dotcom should seek his personal information from the relevant agencies rather than the extradition court.

Whether the requests were vexatious

In the Crown’s view, Mr Dotcom’s requests were intended to disrupt the extradition hearing. However, the Tribunal found Mr Dotcom to be a credible witness and rejected the idea that there was an ulterior purpose to his request.

The Tribunal found that s 29(i)(j) must be applied with caution, particularly when higher courts have directed Mr Dotcom to use the Privacy Act to seek his personal information.

The Tribunal noted that agencies are not well placed to determine whether a request is vexatious as they are not aware of the personal circumstances of the requester. In its view, it must be manifestly clear that the request is vexatious or the information requested is trivial.

Remedies

The remedies were:

  • A declaration that there was an interference with Mr Dotcom’s privacy in transferring the requests to the Attorney-General and in refusing the requests on the grounds that they were vexatious.
  • An order that the Crown agencies comply with Mr Dotcom’s requests from July 2015 subject to the Privacy Act.

Damages

1. Loss of a benefit

The Tribunal awarded Mr Dotcom $30,000 for loss of a benefit relating to his requests for personal information to multiple agencies in the context of his extradition litigation.

The Tribunal referred to Proceedings Commissioner v Health Waikato where the High Court took a serious view of a refusal to provide personal information in the context of litigation. It found that Mr Dotcom’s case was exceptional because he correctly believes that a wide range of government agencies have personal information about him and at least one agency (GCSB) has previously unlawfully collected information about him.

2. Loss of dignity or injury to feelings

The damages awarded for loss of dignity, or injury to feelings was $60,000.

The Tribunal accepted that Mr Dotcom had “clearly and unambiguously” established loss of dignity and injury to feelings, as defined in Hammond v Credit Union Baywide. It stated that anxiety and stress can amount to injury to feelings and this can be assumed or inferred.

The Tribunal considered Mr Dotcom’s loss of dignity and injury to feelings was substantial and noted the unfounded stigmatisation of his requests as vexatious and not genuine.

A more detailed summary of the decision on our website can be read here.

Image credit: Painted finch via John J Audubon's Birds of America

Office of the Privacy Commissioner, New Zealand
Source: Blog
19 Jun 2018, 9:28am AEST

OIPC Deputy Commissioner Jay Fedorak confirmed as new Information Commissioner for Jersey in the British Channel Islands

BC’s Information and Privacy Commissioner Michael McEvoy issued the following statement:

Office of the Information and Privacy Commissioner, British Columbia
Source: OIPC News and Events
16 Jun 2018, 6:00am AEST

Information Publication Scheme — 2018 Survey of Australian Government agencies

The 2018 Information Publication Scheme (IPS) Survey of Australian Government agencies that are subject to the Freedom of Information Act 1982 (Cth) has commenced.

If you have any questions or require further information about the IPS Survey, please contact Mabel Dela Cruz of ORIMA Research on (02) 6109 6300 or surveys@orima.com or OAIC contact officer Emma Liddle Acting Director FOI on (02) 9284 9717 or emma.liddle@oaic.gov.au.

Office of the Australian Information Commissioner
Source: News - OAIC
31 May 2018, 6:54am AEST

Privacy Commissioner Meets Central and Western Concern Group Regarding Legislative Councillor Ted Hui's Incident

Office of the Privacy Commissioner for Personal Data, Hong Kong
Source: Office of the Privacy Commissioner for Personal Data
11 May 2018, 10:00am AEST