Commercial, COVID-19

Exposure draft legislation on the COVIDSafe app published

10 May, 2020

On 25 April 2020, the Minister for Health issued a determination under the Biosecurity Act to allow for the launch of the Federal Government’s COVIDSafe app (the Determination), to enable State and Territory health authorities to conduct “contact tracing” for users of the app who had been exposed to COVID-19. What is undoubtedly an unprecedented measure to help fight the “invisible enemy”, the app has been the subject of much concern in respect of privacy issues.

The Federal Government has recently circulated its “exposure draft” bill to the public, Privacy Amendment (Public Health Contact Information) Bill 2020 (the COVIDSafe Bill), to formalise in law the interim legal framework set up by the Determination. Tellingly, the Government proposes to introduce strict criminal punishment for any person that uses the data for a purpose other than “contact tracing”, as a clear attempt to alleviate privacy concerns in relation to the app.

The COVIDSafe app

The COVIDSafe app is a tool to digitise “contact tracing”, a method that had been conducted manually by health officials to manage and map the outbreak of COVID-19. The COVIDSafe app is designed to fast-track that process, by promptly identifying and contacting people who may have been exposed to the virus.

When you download the app, you are asked to provide your name, mobile number, postcode and age range. The COVIDSafe Bill acknowledges that this is “personal information” for the purpose of the Privacy Act 1988 (Cth) (Privacy Act).

The COVIDSafe app utilises Bluetooth technology to record close interactions between the user and another user of the app who has Bluetooth enabled. When you interact with another user, the app notes the “digital handshake” by recording the date, time, distance and duration of contact. Importantly, the app does not save your location.

In the event that a user is tested positive for COVID-19 and subject to the consent of that user, the data will be uploaded into the National COVIDSafe Data Store (Data Store), a national database administered by the Department of Health or the Digital Transformation Agency (administrator). The health officials will be able to access this information to contact the user or the user’s parent or guardian to complete the “contact tracing” and offer advice on what the exposed user should do to protect themselves and/or to those they have been in close contact.

Permitted collection, use or disclosure of your data

Pursuant to the COVIDSafe Bill, it is proposed that the collection, use or disclosure of the app data is permitted:

  1. by a person who is “employed by, or in the service of, a State or Territory health authority” for the purpose of contact tracing;
  2. by a person who is “an officer, employee or contractor of the data store administrator” for the purpose of enabling contact tracing by an authorised person identified at (1) or to ensure the “proper functioning, integrity or security of COVIDSafe or the [Data Store]”;
  3. for collection or disclosure of the app data, for the purpose of transferring the encrypted data, through the app, between mobile devices or from the mobile device to the Data Store;
  4. for the Privacy Commissioner to exercise its powers under or in relation to the relevant part of Privacy Act;
  5. for investigating possible breach or for prosecuting a person for an offence of such breach; or
  6. by the administrator for the purpose of “producing de-identified statistical information about the total number of registrations through [the COVIDSafe app]”.

Importantly, COVIDSafe data will only be uploaded from a phone to the Data Store if consent has been granted by the user, or a parent, guardian or carer of the user (in the event that the user is unable to provide consent).

Deleting your data

The bill provides that the administrator must “take all reasonable steps” to ensure that the COVID app data is deleted from the mobile device within 21 days or otherwise, “for [not] longer than the shortest practical period” after 21 days. The purpose of the 21-day period is to account for the known incubation period of COVID-19 and delays in getting tested and obtaining results.

When you delete the COVIDSafe app, your information will not immediately be deleted from the Data Store. The COVIDSafe Bill makes provision for the user to be able to request the administrator “to delete any registration data of the person that has been uploaded from the device to the [Data Store]”. Following such request, the administrator “(a) must take all reasonable steps to delete the data from the [Data Store] as soon as practicable; and (b) if it is not practicable to delete the data immediately – must not use or disclose the data for any purpose”. However, if your data relates to another person that was (a) uploaded from another device by another COVIDSafe user, and (b) collected following a “digital handshake” with that other person, it will remain in the Data Store.

Your information will only delete from the Data Store following a declaration made by the Health Minister if is satisfied that, by the specified date, use of the COVIDSafe app is no longer required to prevent or control, or no longer likely to be effective in preventing or controlling, COVID-19 in Australia.

Prior to making the declaration, the Health Minister must consult the Commonwealth Chief Medical Officer or the Australian Health Protection Principal Committee, who can make recommendations to the Health Minister.

Penalties and remedies

Perhaps the most notable difference between the Determination and the COVIDSafe Bill is the strengthening of the privacy protections through significant deterrent measures for misuse of the data, including a maximum jail sentence of five years, a fine of 300 penalty units (currently equates to $63,000), or both.

Further, as the COVIDSafe Bill proposes to amend the Privacy Act, aggrieved users will be able to take enforcement action under the Privacy Act for breach/es that would constitute an “interference with privacy”, and therefore be able to access the remedies prescribed by it, including but not limited to compensation.

What next

Although the COVIDSafe Bill is largely similar to the Determination, it is not law. It remains in draft form. The COVIDSafe Bill needs to pass both houses of Parliament and receive Royal Assent to become law. However, it is expected that the bill will be introduced to Parliament in the week commencing 11 May 2020.

The COVIDSafe bill is no doubt one of the most significant steps taken by the Federal Government in its efforts to eradicate the virus. It will be interesting to see whether any changes occur (if any) – including whether further privacy protections are included, as this will be a primary concern for the Federal Government that would assist to “encourage public acceptance and uptake of [the COVIDSafe app]” to attain its target of 40% of the Australian population.

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Canadian Court elevates thumbs-up emoji to signature status

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After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed.   Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph [18], Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)."   Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and   The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and   The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter.   Judgment At paragraph [36], Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship.   Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph [63]: "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest.   What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.

Published by Foez Dewan
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Venues NSW ats Kerri Kane: Venues NSW successful in overturning a District Court decision

The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane [2023] NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. 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