skip to main content
Site banner

Privacy Act

 

New Zealand’s Privacy Act 2020 has come into force. The new law affords New Zealanders better privacy protections, and organisations and businesses greater obligations when handling personal information.

 

A recap of the major changes is discussed below, plus some examples of how these changes could particularly impact members of our industry.
 
Notifiable data breach reporting:
Under the new law, any organisation that suffers a data breach that has caused or is likely to cause serious harm to affected individuals will be required to notify the Privacy Commissioner and the relevant individuals as soon as possible. Not all privacy breaches will need to be reported. The threshold for a notifiable breach is ‘the likelihood of serious harm’. Guidelines for assessing serious harm are available. Non-compliance can result in a fine of up to $10,000.
 
Compliance notices:
The Commissioner will have new powers to publish notices for privacy breaches, requiring businesses to do something or to desist from doing something.
 
Binding access directions:
The Commissioner will be able to issue binding directions against agencies, to allow individuals to access their information.
 
Disclosing information overseas:
If a business wants to send personal information that hold about people overseas, they will need to:

  • Get authorisation from the person concerned; or
  • ensure the overseas organisation will be subject to NZ privacy law (i.e. because they do business in NZ); or
  • ensure the information will be protected by safeguards comparable to New Zealand’s privacy laws before transferring it offshore. 

Transferring personal information to an offshore data processor (e.g. a cloud storage provider) will (usually) not constitute an overseas disclosure, because the offshore data processor will be deemed to be the NZ businesses’ agent. However, if the offshore data processor breaches the privacy of the individuals who the information is about, the NZ business could be liable for that.
 
Extraterritorial effect:
The Privacy Act now expressly states that it will apply to any actions taken by an overseas organisation in the course of carrying on business in New Zealand.
 
Complaints by groups and class action:
A complaint will now be able to be made on behalf of a group aggrieved individuals, and groups of individuals who have been affected by privacy breaches will be able to bring class actions.
 
Updated Privacy Principles:
Privacy Principle 1 has been updated, to say that you can only hold people’s person information if it is necessary. If you don’t need to keep people’s details, then you shouldn’t.
Privacy Principle 4 requires organisations collection personal information from children or young people to make sure the way they collect it is fair.
Privacy Principle 12 is new. It will regulate the way personal information can be sent overseas (as discussed above).  
Privacy Principle 13 says that organisations will need to take reasonable steps to stop unique identifies being misused (e.g. preventing identifying information they collect then being used for identify theft).
 
New offences and penalties:
New offences are created by the Act, including:

  • Misleading an agency (e.g. pretending to be someone else) to obtain access to someone else’s personal information and
  • destroying a document that is the subject of an information request.

The new maximum fine for these offences (and for other non-compliance) will be $10,000.
 
Further Information to help you:
A useful YouTube video discussing these changes can be found by clicking here or you can view Privacy Information Sheets about these changes, available on the Privacy Commission’s website.

 

If you want more detailed knowledge about the new act (especially if you are the Privacy Officer for an organisation), it can be obtained by doing the E-Learning course Privacy 2.0 on the Privacy Commission website.

 

Examples of how these changes could particularly impact hospitality businesses:

These new Privacy Rules have the most obvious relevance for businesses that keep their customer’s/guest’s details.  This will include bed and breakfast operators (and other accommodation providers) but it could also include other hospitality businesses. For example, various businesses sometimes retain details that customers provide when making a booking, and various businesses of all types often keep personal information about ex-employees. Businesses should reflect on the personal information they retain.

Questions to ask yourself could include:

  • Is it necessary to hold all of this information about all these people?
  • Did these people (presumably guests) authorise the hotel or motel to retain this information?
  • Is the information protected (i.e. could a fraudster ring up and trick you into providing that personal information)?
  • If you store information on the cloud, are you satisfied it is safe?
  • Do you send that information overseas (e.g. an international hotel chain sending information to an overseas head-office).  If yes, do you comply with the new rules about disclosing information overseas
  • Do you exchange “blacklists” with other hotels or motels (i.e. of guests who have misbehaved)?  We think the Privacy Commissioner has always regarded these lists as potentially illegal.  From 1 December the Commissioner will have greater powers to take action in respect of backlists.

 

Privacy Act and Bed & Breakfasts in New Zealand

Whether you conduct business online or offline, and regardless of how you collect the information, you have access to personal information about your guests.   The law makes it clear that it’s your responsibility as a business owner to make sure the information you collect is managed with respect. 

General Data Protection Rules may also apply to you and you can see further information on this here

 

Who it applies to …

The existing Act covers government agencies, local councils, businesses, and individuals.   The privacy law doesn’t just apply to clients and customers – all personal information is covered, including information about employees.  All organisations are required to have a privacy officer to deal with privacy issues.

 

Good Business Practice

Every business is different and we each collect information and store and use that information in different ways.  You should have a privacy policy which should be published on your website and in your room compendium.  However, it is not simply enough to have a privacy policy – you should also ensure all information you collect is stored safely and securely. 

Your privacy policy should also cover all methods you collect information via, such as your website (including cookies), reservation system and any guest registration processes.  It should also cover how long any identifying information will be held.

New Zealand has different legislation to that of the European Union and you should also familiarise yourself with applicable General Data Protection Rules.

 

For a free template which you can modify to suit your business go to - https://www.shopify.co.nz/tools/policy-generator

 

The Privacy Commissioner’s role:

The Privacy Commissioner provides advice and education on privacy, investigates complaints, evaluates new legislation that may impinge on an individual’s rights, reviews data-matching programs, and issues codes of practice.

 

For further information visit:

https://www.privacy.org.nz

 

Privacy Act 1993 

 

Privacy Act and Bed & Breakfasts in New Zealand

Whether you conduct business online or offline, and regardless of how you collect the information, you have access to personal information about your guests.   The law makes it clear that it’s your responsibility as a business owner to make sure the information you collect is managed with respect.  The Act is currently being reformed and is sitting before Parliament and this page shall be updated again once the reforms are confirmed.  Further information about the reforms can be found:

https://www.privacy.org.nz/blog/welcoming-the-privacy-bill/

https://www.justice.govt.nz/justice-sector-policy/key-initiatives/privacy/

 

General Data Protection Rules may also apply to you and you can see further information on this here

Who it applies to …

The existing Act covers government agencies, local councils, businesses, and individuals.   The privacy law doesn’t just apply to clients and customers – all personal information is covered, including information about employees.  All organisations are required to have a privacy officer to deal with privacy issues.

As the Privacy Act is a principle-based system, it is not enforceable in court. An aggrieved individual must make a complaint to the Privacy Commissioner alleging an “interference with privacy”. The Commissioner has no powers to fine or prosecute anyone or order an organisation to pay compensation.

The exception is Principle 6 (Access to personal information) which is enforceable in court if it relates to personal information held by a public sector agency.

 

Good Business Practice …

Every business is different and we each collect information and store and use that information in different ways.  You should have a privacy policy which should be published on your website and in your room compendium.  However, it is not simply enough to have a privacy policy – you should also ensure all information you collect is stored safely and securely. 

Your privacy policy should also cover all methods you collect information via, such as your website (including cookies), reservation system and any guest registration processes.  It should also cover how long any identifying information will be held.

New Zealand has different legislation to that of the European Union and you should also familiarise yourself with applicable General Data Protection Rules.

For a free template which you can modify to suit your business go to - https://www.shopify.co.nz/tools/policy-generator

 

The Privacy Commissioner’s role …

The Privacy Commissioner provides advice and education on privacy, investigates complaints, evaluates new legislation that may impinge on an individual’s rights, reviews data-matching programs, and issues codes of practice.

 

The Privacy Act 1993 …

The Act deals with the collection and disclosure of personal information. It’s more about information privacy than other aspects of privacy.  The Act controls how “agencies” collect, use, disclose, store and give access to personal information.  Personal Information is defined as information about identifiable, living people.  Almost every person or organisation that holds personal information is an “agency”.

The Act has 12 principles that stipulate how information can be collected and used, and people’s rights to gain access to that information and ask for it to be corrected.  Not all of these principles will be relevant to bed and breakfasts but a good many are:

  • Principle 1: Purpose of collection of personal information - An agency may only collect personal information where it is needed to perform a function or activity of the agency.
  • Principle 2: Source of personal information - The agency must collect the information directly from the person concerned. There are exceptions: for example, where the person agrees otherwise, or where the information is publicly available.
  • Principle 3: Collection of information from subject - The agency must take all reasonable efforts to ensure the person is aware that the information is being collected, what it will be used for, the recipients of the information, whether the supply of the information is voluntary or mandatory, the consequences of not providing the information and the person’s rights of access to and correction of the information.
  • Principle 4: Manner of collection of personal information - Personal information must not be collected in an unlawful, unfair or intrusive fashion.
  • Principle 5: Storage and security of personal information - The agency must ensure the information is protected against loss, misuse, or unauthorised disclosure.
  • Principle 6: Access to personal information - Where the information can be readily retrieved, the individual is entitled to confirmation of whether the information is held, and to have access to it. There are exceptions, for example, where disclosure would prevent detection of a criminal offence, or would involve a breach of someone else’s privacy.
  • Principle 7: Correction of personal information - Individuals may request correction of information held. Where this is not agreed to by the agency, the individual may request that the information is tagged with a statement that the correction was sought and was refused.
  • Principle 8: Accuracy of personal information to be checked before use – The agency must not use the information without taking reasonable steps to ensure it is accurate, up-to-date, complete, relevant and not misleading.
  • Principle 9: Agency not to keep personal information for longer than necessary - The agency must not keep the information for any longer than it is needed for the purposes for which it was collected.
  • Principle 10: Limits on use of personal information - Information collected for one purpose must not be used for any other purpose. There are exceptions: for example, where the agency reasonably believes the individual has authorised the further use, or that the information was from a publicly available publication.
  • Principle 11: Limits on disclosure of personal information - The information must not be disclosed except in certain situations. These include where the disclosure is directly related to the purpose for which the information was collected, where the source of the information is a publicly available publication, and where the disclosure is authorised by the individual concerned.
  • Principle 12: Unique identifiers - An agency must not assign a unique identifier to an individual unless doing so is necessary for the agency to carry out its functions efficiently. Where doing so is necessary, agencies must not use a unique identifier that has been assigned to that individual by another agency (the only exception is for certain taxation purposes).

It’s important to note that information such as a telephone number, physical address or an email address is not necessarily “personal information” unless it’s linked to other information which enables an individual to become identifiable.

The Act will not directly apply if information is publicly available or it was collected for marketing purposes.

 

For further information visit:

https://www.shopify.co.nz/guides/new-zealand/privacy-data-protection

https://www.consumer.org.nz/articles/privacy-law

https://www.privacy.org.nz

 

Privacy Act

 
 
+ Text Size -
Original generation time 2.4745 seconds.