The new Privacy Act 2020 will come into effect from 1 December. The new Act will repeal and replace the Privacy Act 1993. The new Act includes some interesting implications for family law.
Technology has significantly changed the way the world operates since the enactment of the 1993 Act. The rise of social media and e-commerce has made information more accessible and valuable than ever. In response to these changes, the new Act strengthens privacy protections for New Zealanders. It promotes early intervention and places a stricter obligation on agencies to manage the risk of a data breach. The Act enhances the role of the Privacy Commissioner to uphold privacy rights and responsibilities.
New criminal offences
A significant addition to the new Act is the introduction of new criminal offences in section 212. In particular, section 212(2)(c) states:
(2) A person commits an offence against this Act and is liable on conviction to a fine not exceeding $10,000 if the person—
(c) misleads an agency by impersonating an individual, or falsely pretending to be an individual or to be acting under the authority of an individual, for the purpose of—
(i) obtaining access to that individual’s personal information:
(ii) having that individual’s personal information used, altered, or destroyed
This new offence may become relevant to family law matters, especially where a couple is separating. An ex-partner is often in the best position to access personal information about their ex through one of the three ways specified in subsection (c).
Mary and Stewart have recently separated. They have two young children and cannot agree on who should have primary care. Each party is making allegations about other parents ability to care for the children. Stewart recently heard that Mary had a seizure. He believes that if he could prove Mary was having regular seizures, he could argue that she should not be allowed to drive children or have them alone in her care. Stewart calls Mary’s doctor and pretends that Mary has asked him to pick up her epilepsy medication but he has lost the script. Stewart had picked up prescriptions for Mary while they were together the receptionist, not knowing they have separated, gives Stewart the script for Mary’s medication.
In this scenario, Stewart has represented that he is acting under the authority of Mary. He is doing so to obtain access to Mary’s private medical information. He has committed an offence against the Act and may be liable on conviction for a fine up to $10,000.
Important considerations for family lawyers
There is a natural curiosity that arises when someone separates from their partner or spouse. Some people have to adjust from knowing almost everything about their partner to radio silence. Most family lawyers will have had experience with clients wanting to snoop on their ex-partner to gain an advantage.
They may want to find out their partners new address, information about their financial position or mental health. This information may assist their case in a relationship property or parenting matter. In many of these situations, their client may now be at risk of being convicted under the Act.
The new Act offers New Zealanders greater protection of their privacy. It also confers more significant obligations to protect privacy. It would be wise for family lawyers to remind their clients that simply because they can access information about their ex-partner does not mean they should. In this discussion, the consequences of unlawfully accessing this information should be explained with reference to the new penalties contained in the Privacy Act 2020.