Kristen Porter: Changes are coming to privacy laws

Direct marketing, targeted advertising and profiling are some of the most commonly used and effective strategies for real estate agents.

Direct marketing includes email marketing communicated directly to individuals using personal information such as their name, email and/or address.

Targeted or behavioural advertising refers to displaying ads based on someone’s previous web activity, often through browser and device tracking. This method also involves profiling, which assists with the personalisation of services.

The proposed new laws aim to strike a balance between ‘fair and reasonable’ uses of direct marketing such as businesses marketing to existing customers, as opposed to other less transparent forms of direct marketing including profiling and targeted advertising.

Current laws 

Using and disclosing personal information for the purpose of direct marketing is currently regulated under the Privacy Act.

This prohibits the use or disclosure of that information unless the business collected the information directly from the consumer.

The consumer must also have a reasonable expectation that their personal information is to be used or disclosed for direct marketing.

Due to the privacy risks associated with tracking and profiling for targeted advertising, proposed reforms are being considered.

Some of the current issues include privacy policies which may describe online tracking technologies as being used for product improvement or user convenience rather than for advertising purposes. 

Under the current laws, consumers can opt out of receiving marketing communications but not from the collection of their personal information for direct marketing purposes.

The review of the Privacy Act includes looking at whether to introduce other rules in order to increase transparency and control over the collection, use and disclosure of personal information for direct marketing.

The review is also looking at the nature of consent in regards to personal information and the issue of consumers suffering from ‘consent fatigue’ if they are asked to positively opt into their information being collected at every site they visit.

Proposed reforms include:

  • Introducing an unqualified right for individuals to object to collection, use and disclosure of their personal information for direct marketing purposes.

    This would replace the current limited right to opt out of receiving direct marketing communications.

    Under this change all businesses subject to the Privacy Act would be required to stop collecting, using or disclosing the personal information for direct marketing, and inform individuals of the consequences of their objection.

    Businesses would also be required to notify individuals of their right to object with each marketing product they provide.
  • A new requirement that using or disclosing personal information for the purpose of influencing an individual’s behaviour or decisions must be identified as a primary purpose, which is notified to the individual when their personal information is collected.

    This means direct marketing would only be permitted where it was the primary purpose for the original collection notified to the individual.

    This proposal aims to address the issue of third parties collecting, using and disclosing personal information to deliver targeted advertising to individuals without their knowledge.
  • Further proposals are suggested in order to strengthen privacy policy and collection notice requirements, such as an express requirement that collection notices be clear, current and understandable.

    This aims to address concerns that individuals cannot currently make informed decisions about their personal information, as broad descriptions often used to describe the purposes of collecting personal information do not make clear the extent of use for marketing and profiling.

It’s critical that real estate agents keep on top of current and future legislation, particularly if they’re actively involved in digital marketing – which most agencies are.

Staying ahead of the game may be a bit of extra work now, but it could  save you a lot of pain – and money – down the track. 

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Kristen Porter

Kristen Porter is a legal practitioner specialising in real estate, property management and privacy laws. She is the founding Director of O*NO Legal The Real Estate Agents' Lawyer.


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