Why Australia needs voter privacy laws
The Attorney-General Department’s highly anticipated Privacy Review Report proposes some fundamental and much needed amendments to Australia’s outdated privacy laws – among them, a proposal to change the rules that apply to political parties when they handle our personal information.
Election campaigns are increasingly data-driven. In recent years, high-profile scandals involving data-driven campaigning have made voter privacy a pressing public concern. Yet, political parties are currently free to collect and use personal information as they see fit. Broad exemptions sewn into the Privacy Act 1988 (Cth) over 20 years ago exempt parties from the same rules that apply to most other organisations.
The proposal to narrow these exemptions is a significant and welcome step toward protecting voter privacy, and in turn, democratic processes. However, the proposed changes alone won’t address the democratic challenges posed by current and emerging data-driven campaigning practices.
Transparency is critical, but privacy policies aren’t enough
The report proposes enhancing transparency around how political parties and representatives handle personal information by obliging them to publish privacy policies.
The main function of a privacy policy is to support individuals to make informed choices about how their personal information is used and shared. When it comes to information practices that affect democratic processes, however, public not just individual-level scrutiny is essential. Political parties have had privacy policies for years, and yet public knowledge of how they collect and use voter data remains sketchy. It’s the work of investigative journalists, academics and civil society that has drawn the curtain on practices which cause discomfort and concern.
The big advertising platforms maintain ad archives, but they suffer from shortcomings which inhibit public scrutiny. Plus, the availability of these archives in Australia is subject to the discretion of platforms, who can unilaterally revoke access any time. As such, the absence of government regulation leaves digital platforms with significant power to influence our collective understanding of election campaigns and other political events through the design of their ad archives.
What we need instead is legally mandated public transparency resources for journalists, academics, and civil society organisations to interrogate, and communicate their findings to the wider voting public. A number of other jurisdictions have already implemented or proposed measures along these lines – Australia should do the same.
Voter’s need to know when and why they’ve been targeted
The report tenders some big changes to targeted political advertising.
In light of recent experience, the proposed right to opt-out of targeted political ads will be welcomed by many Australian voters. Not only is the measure likely to be popular, it will be consistent with freedom of political communication, which exists to support informed choice, but not to guarantee speaker’s a captive audience.
The report also proposes a prohibition on targeting ads and content based on sensitive information, except political opinions and associations. The proposal would help address the risk of political campaigns depriving voters of access to information and communications based on, say, their religious beliefs.
In addition to discrimination, another problem with voter targeting is that it undermines informed choice. Authorisation rules in our electoral laws help ensure voters know who is communicating a political message. To properly evaluate a political ad, voters also need to know when and on what grounds it’s been tailored and targeted to them. It might be obvious in some cases, like when a voter receives communications from their trade union. When a political campaign infers or predicts a voter’s political opinions and associations, however, the grounds for targeting won’t be clear. Recognising this problem, the EU is considering a law to mandate disclosure of targeting information with targeted political ads. Australian lawmakers should consider following their lead.
Re-purposing personal information
Under the current Privacy Act, organisations aren’t allowed to re-purpose personal information collected for one purpose, unless an exception applies. This principle – the ‘purpose limitation’ – is supposed to align data practices with expectations and avoid surprises. Unfortunately, extending this key pillar of privacy protection to the political context isn’t among the proposed reforms in the report.
The exemption means that political parties and representatives can re-purpose data collected in one context, such as providing constituency services, for their political campaigns. Not only can such practices defy voter trust and expectations, they can help to entrench incumbency advantage. Extending the purpose limitation would at least require political campaigns to get the voter’s consent or limit re-use to secondary purpose they would reasonably expect.
A paradigm shift is a good start
Heeding the advice of a bevy of stakeholders, the report recommends an amendment to recognise the public interest in protecting privacy. For too long, privacy has been framed in Australian law as a purely individual interest, which should be overridden by organisational and societal needs. The political exemptions are premised on that very notion.
A move to recognise the public interests in privacy represents a fundamental paradigm shift. One of the public interests that privacy supports is free and informed voter choice – the foundation of Australia’s democratic system.
The proposed changes to the political exemptions are overdue and necessary for the health of Australian democracy. However, bolder reforms are needed to better protect voter privacy and democratic choice.