Leslie Massey
The General Data Protection Regulation (GDPR) is a European Union (EU) legislation that came into effect in May 2018, regulating the processing and storage of personal data of EU citizens. While the GDPR is an EU law, it has extraterritorial reach and applies to organisations outside the EU that offer goods or services to, or monitor the behaviour of, individuals in the EU. This raises the question of whether Australian businesses need to comply with the GDPR. So, does the GDPR apply to Australia?
| Characteristics | Values |
|---|---|
| When does GDPR apply in Australia? | If Australian businesses do business with EU/UK residents, including collecting email addresses from visitors to their website from the EU and the UK, marketing their goods and services in an EU language (other than English), or monitoring the behaviour of EU and UK residents through online cookies. |
| Does GDPR apply to all Australian businesses? | No, only those with an EU nexus. |
| What are the criteria for Australian businesses to comply with GDPR? | You refer to EU customers on your website (e.g. in testimonials), you have a branch, administrative office, or company registered in the EU, you process the personal data of EU residents (e.g. customer support for an EU company), or you monitor the behavior of EU residents (e.g. track EU residents with cookies for profiling). |
| What are the consequences of not complying with GDPR? | Fines |
| What is the purpose of GDPR? | To harmonize data protection laws across the EU and replace existing national data protection rules, to build legal certainty for businesses, and enhance consumer trust in online services. |
| What is the scope of 'personal data' under GDPR? | Any information relating to a natural person that identifies that person directly or indirectly, or assigns an identifier, or links to them by specific physical, mental, economic, or social identifiers. |
| What are the key requirements of GDPR? | Additional protections for 'special categories' of personal data, including racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data, health data, and data concerning sexual orientation. Clear requirements for obtaining informed consent from individuals for collecting, using, or disclosing personal data. |
| How is GDPR different from the Australian Privacy Act? | The simplest distinction is that GDPR deals with 'Personal Data', while the Privacy Act deals with 'Personal Information', which are defined differently. |
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What You'll Learn
- Australian businesses with no EU nexus are not required to comply with GDPR
- Australian businesses that do business with EU/UK residents must comply with GDPR
- Australian businesses may already have some measures in place that will be required under GDPR
- Australian Privacy Act 1988 (Cth) has a similar operation to GDPR
- Australian businesses that choose to follow GDPR should do so for all personal data
Australian businesses with no EU nexus are not required to comply with GDPR
The General Data Protection Regulation (GDPR) is a piece of legislation that came into force in May 2018 to protect EU residents from the misuse or loss of personal information collected by apps and websites. It applies to all entities that collect, process, or store personal data on a Data Subject, regardless of the entity's location or origin.
Australian businesses with no EU nexus are not required to comply with the GDPR. However, some Australian businesses may need to comply with the GDPR if they meet certain criteria. This includes having an establishment in the EU, offering goods and services to EU residents, or monitoring the behaviour of individuals in the EU.
Australian businesses that do have dealings with EU residents or businesses will need to comply with the GDPR. This includes collecting email addresses from visitors to a website from the EU, marketing goods and services in an EU language, and monitoring the behaviour of EU residents through online cookies.
Australian businesses should evaluate their information-handling practices and governance structures to ensure they are complying with the relevant privacy laws, including the GDPR if applicable. This may involve seeking legal advice to ensure they are implementing the necessary changes to comply with the GDPR.
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Australian businesses that do business with EU/UK residents must comply with GDPR
The General Data Protection Regulation (GDPR) is a piece of legislation that came into force in May 2018 to protect EU residents from the misuse or loss of personal information collected by apps and websites. It applies to all entities that collect, process, or store personal data on a Data Subject, regardless of the entity's location or origin.
Australian businesses that do business with EU/UK residents must comply with the GDPR. This includes collecting email addresses from visitors to your website from the EU and the UK, marketing your goods and services in an EU language (other than English), and monitoring the behaviour of EU and UK residents through online cookies. If you have UK customers and newsletter subscribers, you must comply with GDPR rules regarding their personal data.
Australian businesses that meet any of the following criteria will need to comply with the GDPR:
- You refer to EU/UK customers on your website (e.g., in testimonials)
- You have a branch, administrative office, or company registered in the EU
- You process the personal data of EU/UK residents (e.g., customer support for an EU company)
- You monitor the behaviour of EU/UK residents (e.g., track EU/UK residents with cookies for profiling, customizing online ads, etc.)
The GDPR and the Australian Privacy Act 1988 (the Act) have similar requirements and share some similarities in their definitions of personal data and personal information, respectively. Both laws require businesses to implement measures that ensure compliance with a set of privacy principles and take a privacy-by-design approach. However, the GDPR deals with Personal Data, while the Privacy Act deals with Personal Information, which are defined differently.
Australian businesses should evaluate their information-handling practices and governance structures, seeking legal advice where necessary, to implement the necessary changes to comply with the GDPR.
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Australian businesses may already have some measures in place that will be required under GDPR
The General Data Protection Regulation (GDPR) is a piece of legislation that came into force in May 2018 to protect EU residents from the misuse or loss of personal information collected by apps and websites. The GDPR applies to any business that is processing data relating to EU citizens. Australian businesses that fall under the scope of the GDPR—which many will—need to take steps to ensure they are compliant.
Some Australian businesses may already have some measures in place that will be required under GDPR. For example, both laws require businesses to implement measures that ensure compliance with a set of privacy principles, and both take a privacy-by-design approach to compliance. In addition, privacy impact assessments, mandated in certain circumstances under the GDPR, are expected in similar circumstances in Australia. Both laws are technology-neutral, which will preserve their relevance and applicability in a context of continually changing and emerging technologies.
Australian businesses should evaluate their information-handling practices and governance structures, seeking legal advice where necessary, to implement the necessary changes before the commencement of the GDPR. They should be transparent about the personal data they are processing and collect that data lawfully. They should also be specific about their intended use of that data and only use it for those purposes. Only collect what you need, and no more. Keep personal data up-to-date, error-free, and safe. Show that you understand these principles and are compliant with them.
To comply with the GDPR, Australian businesses should also update their email marketing processes and privacy policies. They must obtain "active consent" from their EU customers or visitors to collect their personal information and/or send any emails, newsletters, updates, or similar. Otherwise, they will need to delete any EU residents' personal data. They should also put processes in place to regularly purge their databases of unused or outdated personal data.
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Australian Privacy Act 1988 (Cth) has a similar operation to GDPR
The Australian Privacy Act 1988 (Cth) is the primary piece of legislation regulating the handling of personal information in Australia. It sets out standards, rights, and obligations regarding the collection, use, storage, and disclosure of personal information by government agencies and private sector organisations. The Privacy Act does not include a right to restrict processing. However, it does require APP entities to take reasonable steps to ensure the quality of personal information under APP 10 and to correct incorrect personal information under APP 13.
The European Union General Data Protection Regulation (GDPR), on the other hand, is a comprehensive data protection framework that applies to all EU member states. It establishes strict rules and guidelines for the processing and protection of personal data, with the aim of safeguarding the privacy and rights of individuals. While the GDPR and the Australian Privacy Act have different scopes and jurisdictions, they share some similarities in their operations.
Both laws foster transparent information handling practices and business accountability, giving individuals confidence that their privacy is being protected. They require businesses to implement measures that ensure compliance with a set of privacy principles and both take a "privacy by design" approach to compliance. For example, both laws require data breach notification in certain circumstances. Additionally, privacy impact assessments, mandated under the GDPR in specific situations, are strongly recommended as a best practice by the Office of the Australian Information Commissioner (OAIC) under the Australian Privacy Act.
Furthermore, both laws are technology-neutral, ensuring their relevance and applicability even as technologies evolve and change. This means that Australian businesses may already have some of the measures in place that are required under the GDPR. However, it is important to note that the GDPR requirements applying to data controllers are more extensive than those in the Australian Privacy Act, and there are some differences in the specific protections offered. For instance, the GDPR provides additional protections for 'special categories' of personal data, including data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, and genetic information.
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Australian businesses that choose to follow GDPR should do so for all personal data
The General Data Protection Regulation (GDPR) is a piece of legislation that came into force in May 2018 to protect EU residents from the misuse or loss of personal data collected by apps and websites. The GDPR only applies to EU residents, but it also has extraterritorial reach, meaning that any business anywhere in the world, including Australia, that handles the personal data of EU residents must also comply with the GDPR.
Australian businesses that collect, use, or store personal data from EU residents are required to comply with the GDPR. This includes collecting email addresses from visitors to their websites from the EU, marketing their goods and services in an EU language (other than English), or monitoring the behaviour of EU residents. If an Australian business falls under the scope of the GDPR, it is recommended that they take steps to ensure they are compliant. This includes being transparent about the personal data being processed and ensuring it is collected lawfully.
Australian businesses that choose to follow the GDPR should do so for all personal data, rather than creating separate processes for EU residents only. This is because the GDPR has more stringent requirements than Australia's existing privacy laws, such as the Privacy Act of 1988. The Privacy Act, for example, does not offer EU residents the "right to be forgotten", but the GDPR does. Therefore, it is simpler for Australian businesses to adopt the GDPR requirements for all personal data they collect, rather than maintaining separate processes for EU residents.
Businesses that do not comply with the GDPR may face penalties, including fines of up to 4% of the company's annual worldwide revenue from the previous year or €20 million, whichever is higher. The EU also requires all organisations based outside of it to appoint a representative to deal with all issues relating to data protection. This representative may enforce fines if the company falls out of compliance.
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Frequently asked questions
The GDPR is a European Union regulation that applies to EU citizens. However, it also applies to organisations outside the EU that offer goods or services to EU citizens or monitor their behaviour. Australian businesses that do business with EU residents or collect their data (e.g. email addresses or cookies) are therefore impacted by the GDPR and may need to comply.
If your Australian business has customers from the EU, you refer to EU customers on your website, or you process the personal data of EU residents, you will need to comply with the GDPR. You can choose to fully or partially comply with the GDPR, or not comply at all, but non-compliance risks fines.
The Australian Privacy Act 1988 (Cth) (the Privacy Act) and the GDPR have a similar operation and share some requirements, such as fostering transparent information handling practices and business accountability. However, a key difference is that the GDPR deals with "Personal Data", while the Privacy Act deals with "Personal Information", which are defined differently.
