Look out for upcoming changes to data use

The recently released Productivity Commission’s (Commission) inquiry report into Data Availability and Use¹ highlights the need for progress and change in the way the Government, corporations and individuals deal with data.

The Commission found that reform is required, and recommends a new data framework be introduced. The drivers for this proposed reform is to:

• address the current discrepancies in regulation and governance of data use and sharing, predominately through the introduction of new, all-encompassing legislation;
• create a “comprehensive right” for all consumers, providing them with greater rights to access their consumer data;
• create a new statutory office holder – the Office of the National Data Custodian, which will oversee the national data system, including compliance, accreditation, data de-identification processes, complaints and reporting; and
• create infrastructure to support and promote data sharing and release.

Proposed legislation

The Commission propounded new Commonwealth legislation in the form of a Data Sharing and Release Act (New Act). The New Act would aim to consolidate data management and use and create a framework for data sharing and release. It would apply to all government (including Commonwealth, State and Territory), private and not-for-profit sector bodies.

The New Act would interact with the current Privacy Act 1988 (Cth), but also extend further to data not classed and “personal information” and so not covered by the Privacy Act. Particularly, the New Act would give consumers the right to access their consumer data and suggest edits or corrections to it. Consumers would also be entitled to direct holders of their consumer data to provide that information to third parties (including the holder’s competitors).

The New Act would also create a structure for the sharing and release of data which can be “dialled up for the sharing or release of higher-risk datasets”. This regime would address the need for consistency in the regulation of data sharing and access and risk management, whilst also maintaining flexibility to deal with the varying issue which may arise in relation to different types of data and their sensitivity.

Interference with intellectual property rights

The Commission has acknowledged that there is the potential for conflict between consumers’ rights to access their data and maintenance of intellectual property rights. However, intellectual property rights should not be abused in order to prevent consumers accessing their data.

To address this concern, the Commission is involved in a sister report to this inquiry report which is currently under consideration by the Government.

Lavan comment

The proposed reform has the benefit of consolidating and regulating the use of data, providing greater clarity around the issue. Further, the proposed increased access to datasets, both private and public, may have the added benefit increasing insights into population trends and revealing valuable market data. On the flip side, the reform may also therefore increase levels of competition and impose more onerous compliance requirements.

The Commission emphasised that these changes should be implemented as soon as possible, and recommended the New Act be introduced and in effect by the end of 2018.

Working to this date, changes are likely to be brought in quickly. Government and corporate entities should consequently be aware of the changing environment and be ready to comply with any new regime.