Aussie Move to Join Asia-Pacific Privacy Plan Gets Mixed Reviews

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By Murray Griffin

Australia’s move to seek inclusion in an Asia-Pacific cross-border data transfer system is getting mixed reviews from privacy professionals interviewed by Bloomberg Law.

Some Australian privacy pros said membership in the Asia-Pacific Economic Cooperation (APEC) Cross-Border Privacy Rules (CBPR) system won’t change anything for companies. But others say participation in the program, which already counts Japan and the U.S. as members, would help companies by boosting regional trade.

Joining the CBPR system will allow commercial entities a welcome opportunity to demonstrate their privacy commitments, Australian Information and Privacy Commissioner Timothy Pilgrim told Bloomberg Law Nov. 30.

Australia’s attorney general Nov. 23 announced the country’s intention to join the CBPR system, but offered no timetable for completing the process.

The CBPR system approved by the 21 countries in APEC, including Australia, is designed to protect the privacy of personal data as it more freely flows across the borders of member countries. In order to join the CBPR, a country has to adopt national data transfer privacy procedures, establish an independent public or private sector accountability agent to oversee the self-regulatory program in the country, and authorize a government agency as an enforcement backstop. The accountability agent would then certify individual companies as being in compliance with the program’s general privacy principles.

The U.S. and Japan are the only CBPR participants that have appointed accountability agents to certify businesses as compliant with CBPR requirements. Canada, Mexico, and South Korea are moving to fully participate in the CBPR system, but still must appoint accountability agents. In July, Singapore announced its intent to join the program.

Differing Views

Graham Greenleaf, professor of law and information systems at the University of New South Wales, isn’t enthusiastic about Australia’s move to join the CBPR system, telling Bloomberg Law that doing so is “pointless.” The system doesn’t advance privacy because it is less stringent than the country’s own privacy statute, Greenleaf said. Therefore, an Australian company can’t rely on a CBPR-complaint certification of an overseas company as a means to transfer personal data, because the foreign company might not be otherwise compliant with Australian law, he said.

Companies should also be aware of the expense involved in paying an annual fee to the accountablity agent, Greenleaf said.

But not everyone shares that assessment.

It would be a mistake for companies to ignore the country’s move to join the CBPR system, Graham Williamson, a privacy and cybersecurity senior analyst with KuppingerCole in Brisbane, Australia, told Bloomberg Law.

In the Asia-Pacific region, cross-border privacy rules are important, he said. Australia’s decision to join the CBPR sysem will provide “oil for more frictionless trade” in the region by making it easier for companies to confidently share data across borders, Williamson said.

Steven Klimt, privacy specialist and financial services partner at Clayton Utz in Sydney, told Bloomberg Law that the APEC CBPR system is “a baby step in the right direction, but that is all it is.”

To contact the reporter responsible for this story: Murray Griffin in Melbourne at correspondents@bloomberglaw.com

To contact the editor responsible for this story: Donald Aplin at daplin@bloomberglaw.com

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