Data Protection and Artificial Intelligence Law: Europe Australia Singapore - An Actual or Perceived Dichotomy
American Journal of Science, Engineering and Technology
Volume 4, Issue 4, December 2019, Pages: 55-65
Received: Nov. 1, 2019; Accepted: Nov. 27, 2019; Published: Dec. 5, 2019
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Authors
Robert Walters, Lecturer, Victoria Law School, Victoria University, Melbourne, Australia
Matthew Coghlan, Associate, Asian Law Centre, Faculty of Law, University of Melbourne, Melbourne, Australia
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Abstract
Artificial Intelligence (AI) is moving so rapidly policy makers, regulators, governments and the legal profession are struggling to keep up. However, AI is not new and it has been used for more than two decades. Coupled with AI, personal data, along with cyber security law, and the challenges posed by the current legal frameworks are nothing short of immense. They are, in part, at odds with each other, and are doing very different things. This paper explores some of the challenges emerging in Australia, Europe and Singapore. The challenge of the interrelationship between personal data and AI arguably begins with who has manufactured the AI. Secondly, who owns the AI. Another challenge that has also emerged is defining AI. Most people are able to understand what AI is and how it is beginning to impact the economy and our daily lives. However, there is no clear legal definition of AI, because AI is so nebulous. This burgeoning area of law is going to challenge society, privacy and economic experts, regulators, innovators of technology, as there continues to be a collision between them. Furthermore, the collection of personal data by AI challenges the notion of where responsibility lies. That is, AI may collect, use and disclose personal data at different points along the technology chain. It will be highlighted how the current data protection laws rather than promote AI projects, largely inhibit its development. This paper identifies some of the tensions between data protection law and AI. This paper argues that there is a need for an urgent and detailed understanding of the opportunities, legal and ethical issues associated with data protection and AI. Doing so will ensure an ongoing balance between the economic and social issues that are attached to the two areas of the law.
Keywords
Artificial Intelligence, Data Protection, Australia, European Union, Singapore
To cite this article
Robert Walters, Matthew Coghlan, Data Protection and Artificial Intelligence Law: Europe Australia Singapore - An Actual or Perceived Dichotomy, American Journal of Science, Engineering and Technology. Vol. 4, No. 4, 2019, pp. 55-65. doi: 10.11648/j.ajset.20190404.11
Copyright
Copyright © 2019 Authors retain the copyright of this article.
This article is an open access article distributed under the Creative Commons Attribution License (http://creativecommons.org/licenses/by/4.0/) which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.
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[20]
Regulation 2016/679 Of the European Parliament and the European Council, on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation), Official Journal of the European Union L 119/1, Article 4.
[21]
Privacy Act 1988, section 6.
[22]
Ibid. Additional categories of personal information include, Membership of a professional or trade association; Membership of a trade union; Sexual orientation or practices; Criminal record; Health information about an individual; Genetic information (that is not otherwise health information); Biometric information that is to be used for the purpose of automated biometric verification or biometric identification; or Biometric templates.
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Australian Privacy Principle 3, the collection is reasonably necessary for an APP entity’s functions or activity, or a listed exception applies.
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Personal Data Protection Act 2012, section 2.
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[26]
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[27]
Ibid, Article 7. The withdrawal of consent shall not affect the lawfulness of processing based on consent before its withdrawal. Prior to giving consent, the data subject shall be informed thereof. Notably, the word shall provide a flexible approach to whether the data subject is informed or otherwise. When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract. This also includes the provision of a service, which is conditional on consent to the processing of personal data that is not necessary for the performance of that contract. iller v Procopets (2008) 24 VR 1.
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Privacy Act 1988.
[30]
Ibid. In Direct Marketing, APP 7.15 The ‘reasonably expect’ test is an objective test that has regard to what a reasonable person, who is properly informed, would expect in the circumstances. This is a question of fact in each individual case. It is the responsibility of the organization to be able to justify its conduct. 7.16 Factors that may be important in deciding whether an individual has a reasonable expectation that their personal information will be used or disclosed for the purpose of direct marketing include where: the individual has consented to the use or disclosure of their personal information for that purpose (see discussion in paragraph 7.23 below and Chapter B (Key concepts) for further information about the elements of consent): the organization has notified the individual that one of the purposes for which it collects the personal information is for the purpose of direct marketing under APP 5.1 (see Chapter 5 (APP 5)) the organization made the individual aware that they could request not to receive direct marketing communications from the organization, and the individual does not make such a request (see paragraph 7.21).
[31]
Australian Privacy Principles, 7.2, 7.3, 7.4. Express consent is given explicitly, either orally or in writing. This could be a handwritten signature, oral statement, or use of an electronic or voice signature. Generally, it cannot be assumed a person has provided consent on the basis they did not object in the first place to allow their data to be processed or transferred to a third party. Furthermore, it will be difficult for an APP entity to establish that an individual’s silence can be taken as consent.
[32]
Rogers v Whitaker (1992) 175 CLR 479, 490.
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Australian Privacy Principles 3.
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Personal Data Protection Act 2012, Division 1.
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Personal Data Protection Act 2012, section 15 and 17. In accordance with Second Schedule (collection), Third Schedule (use) and Fourth Schedule (disclosure).
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Personal Data Protection Act 2012, section 13.
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[46]
Personal Data Protection Act 2012, section 21.
[47]
Personal Data Protection Act 2012, section 21 (2), Third, Fourth and Fifth Schedule provides a list of exemptions. Use of Data without consent, Disclosure of data without consent and Exemption from Access. Section 21 (3), provides circumstances in which an organization ‘must not’ provide personal data or other information. A provision such as is this is important for, and applies to, the protection of physical or mental health, or, reveals the identity of an individual who has provided personal data about another individual. Therefore, no data or information is to be released that is in the national interest.
[48]
Data Protection Impact Assessment (DPIA) and prior consultation of the Supervisory Authority, Articles 35 and 36 of GDPR. In addition, “where a data protection impact assessment under Article 35 indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk”, the data controller shall consult the relevant Data Protection Supervisory Authority under Article 36 of GDPR.
[49]
Personal Data Protection Commissioner, Guide to Data Protection Impact Assessments (2017). Data protection risks are best addressed when the system or process is i) new and in the process of being designed, or ii) in the process of undergoing major changes. Introducing changes to address data protection risks after the design of a process or system has been finalised or implemented will likely lead to increased cost and effort. Some examples of when to conduct a DPIA include: creating a new system that involves the handling of personal data (e.g. new website that collects personal data); creating a new process, including manual processes, that involves the handling of personal data (e.g. receptionist collecting personal data from visitors); changing the way that existing systems or processes handle personal data (e.g. redesign of the customer registration process); and changes to the organisational structure that affecting the department handling personal data (e.g. mergers and acquisition, restructuring).
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Office of the Australian Information Commissioner, Guide to undertaking privacy impact assessments, https://www.oaic.gov.au/agencies-and-organisations/guides/guide-to-undertaking-privacy-impact-assessments.
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