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Particular Privacy Issues Affecting Children and Young People

PrivacyPostFeb16Online consumers and direct marketing privacy issues

Personal information collected in the online environment is subject to the same laws as any other personal information. The internet is now an integral part of modern marketing techniques. Given their familiarity and high usage of the internet, and their significant consumer power, it is not surprising that this medium is used to target children and young people.

The World Wide Web has provided children with abundant new opportunities for learning, communicating and playing. But parents and children need to be aware that the Internet has joined television, radio and print as a key component of today’s marketing campaigns and many use consumer information to build individual relationships.

Children are often more cyber-savvy than their parents. But they also have a trusting and curious nature that may lead them to give out personal information without realising it. There is extensive literature that addresses the particular susceptibilities of children as consumers. When combined with a medium that is often used by children and young people with little or no supervision, concerns arise about the privacy of children and young people as consumers using the internet.

 Online privacy regulation in Australia

A paper written by the Australian Law Reform Commission outlines some pertinent facts regarding privacy and how privacy laws are implemented and enforced in Australia. The rest of this blog contains excerpts from the Commission’s Australian Privacy Law and Practice Report. The Privacy Act does not distinguish between the application of privacy principles in the online environment and their application in any other area. There is some criticism, however, of the operation of the privacy principles in the online environment.

The fact is that, under existing Australian law, individuals have almost no privacy ‘rights’ in the online environment and even the few rights they allegedly have are not protected adequately and are difficult, sometimes impossible, to have enforced.

The lack of rights arises from a combination of factors, including but not limited to, uncertainty regarding the definition of ‘personal information’; no requirement to obtain consent before collecting personal information; use of bundled ‘consents’ including to disclose information to unspecified ‘partners’; the small business exemption; and/or technological developments.

The article recommends that the same set of privacy principles is recommended to apply to the handling of personal information regardless of the medium. It is possible for industries to develop their own standards or guidelines, consistent with the Privacy Act, that address particular online privacy practices, including with respect to the privacy of children and young people. For example, the Internet Industry Association (IIA) has developed a Privacy Code of Practice, which is currently under consideration by the Office of the Privacy Commissioner (OPC). The Code includes a specific provision requiring that a legal guardian provide consent on behalf of an individual under the age of 13 before disclosure of sensitive information collected from or about the child.

The Australian Direct Marketing Association (ADMA) publishes tips on helping parents to safeguard a child’s privacy online, and plans to introduce guidelines on children’s privacy that will be compulsory for its members.

 Direct marketing to children and young people

The Obesity Prevention Policy Coalition (OPPC) and Young Media Australia (YMA) made a joint submission to this Inquiry that focused on the problems of direct marketing aimed at children and young people. Although the concerns about direct marketing arise regardless of the media involved, the increasing use of technology to engage with children and young people was seen as a particular concern.

In the article author’s view, protecting children from interference with their privacy through direct marketing is becoming increasingly important in light of children’s increasing use of the internet, email and SMS, and advertisers’ widespread use of these technologies to market products directly to children They are particularly concerned about direct marketing using these technologies because, unlike television, these technologies enable marketers to interact directly with children. Direct marketing using these technologies intrudes directly into children’s personal space, and provides marketers with unsupervised access to children.

The OPPC and YMA cited research indicating that children are more susceptible to commercial influence, and that they are unfairly manipulated by direct marketing. Many children and young people do not have the capacity to make appropriate decisions regarding the disclosure of personal information in a direct marketing context. Further, the OPPC and YMA submitted that direct marketers are unlikely to have the kind of contact with children or young people required to make any individual assessment about capacity. They also noted that direct marketers have a vested interest in assuming that consent is informed and freely given.

The OPPC and YMA suggested that direct marketers should be prohibited from collecting or using information without the express, verified consent of the child’s parent if they know, or would be reasonably likely to know, that it is about an individual under the age of 14. It was proposed that the express, verified consent should be able to be provided through a signed form sent by mail or fax, provision of a credit card number or electronic signature, or calling a toll-free number staffed by trained personnel. It also was suggested that there be a prohibition on making consent to use personal information for direct marketing purposes a condition of entry to a competition, promotion or other activity if the entrant is under the age of 14. The OPPC and YMA provided a number of examples where this condition of entry has been used in competitions or clubs aimed at children in Australia.

 Options for reform

Given the concerns raised about collection of personal information from children and young people for direct marketing purposes, particularly in the online environment, there is a need to consider whether the Privacy Act or related legislation should contain additional protections for children and young people that modify the general application of the privacy principles.

Some options should included posting privacy policies on websites; rights of access and correction; and obligations to maintain the confidentiality, security and integrity of collected personal information—apply under the Privacy Act to all personal information, not only to personal information about children.

Does your business or employer have a privacy policy in place? Are you aware of it? Have you signed off on it? Do you believe the policy is being monitored and upheld?

To ensure the safety of your staff and customers, and hence your business, ensure to implement privacy measures that make your company both legally and ethically compliant. If you need any assistance, contact Hall of Fame Marketing Bendigo, part of the Hall of Fame Business Solutions Group.

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