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7 minute read

Australia’s current privacy act is thirty-six years old, to be exact. While the act has served our country well, it is no longer fit for purpose in the complicated world we live in. It’s about to get a big upgrade, with even bigger repercussions for those who don’t comply. So the time to start preparing is now.

In real estate, we collect a heck of a lot of data from people:

  • Open home lists
  • Sales property enquiries
  • Rental property enquiries
  • Tenancy applications
  • Offer submissions
  • Appraisal requests
  • Testimonials and complaints
  • Notes written down on sticky notes at the reception desk
  • Social media messages
  • And so much more…

These eagerly awaited reforms to Australia’s privacy laws are about to get underway, with the Australian Government releasing its response to the Privacy Act Review Report, which aims to achieve the following:

Among the recommendations the government has agreed to or agreed to, whether in full or ‘in principle,’ one particularly demands attention from every real estate business and industry tech provider given the nature of our industry.

Regulation of targeted advertising (Proposal 20). The Report proposes prohibitions on the use of information related to an individual (including personal information, de-identified information, and unidentified information (such as internet tracking history)) for targeted advertising and content to children, and prohibitions on using sensitive information for targeted advertising and content to any individuals. Individuals have a right to opt-out of receiving targeted advertising and content, and any permitted targeting must be ‘fair and reasonable’ and come with transparency requirements about the use of algorithms and profiling to recommend content to individuals. These changes draw from regulation introduced by the European Commission last year under the Digital Services Act.

Targeted Advertising Under the Microscope

Under the forthcoming regulations, the use of personal data, de-identified data, and even unidentified information (such as IP addresses, IMEI numbers etc) for the purposes of targeted advertising will be heavily restricted.  The stipulation that individuals must be able to opt out of receiving targeted ads introduces a critical operational change for real estate agencies. Notably, any targeted advertising that is permitted must adhere to principles of fairness and reasonableness, coupled with stringent transparency about the use of algorithms and profiling in content recommendation.

In simple terms, sending DL cards to people with a “No Junk Mail” sign on their letterbox can land you in hot water, but it extends far beyond that. If someone asks you to stop sending them your marketing stuff, this means everywhere… social media, email, SMS, letterbox drops, phone calls, carrier pigeons… everything. Many real estate agents have walked right up to the line on this for many years, given the lack of scrutiny from authorities, but that’s all changing under this new legislation.

Scenario: 

Consider a situation where an individual requests to cease receiving your marketing materials. If you’re currently running a Facebook advertisement that targets users from your CRM database, and this individual is part of that target audience, you are obligated to remove them from this audience promptly. Moreover, it’s essential to ensure their removal extends beyond just the ad audience; you must also delete their information from every other system where it may reside, including your CRM, email lists, SMS databases, etc. This comprehensive action is necessary to comply with the upcoming privacy regulations and to safeguard against potential breaches.

For real estate businesses, this means a rigorous reassessment of how data is collected, stored, and utilised in marketing strategies. Agencies will need to ensure their systems are capable of comprehensively removing an individual’s data—including IP addresses and other identifiable information—across all platforms upon request. This extends to CRMs, social media channels, and any other digital footprints associated with marketing efforts. Failure to comply not only jeopardises consumer trust but also places agencies at risk of legal repercussions.

What Is The Right To Be Forgotten?

The right to be forgotten is essentially the right to have your personal data removed from a certain place. In other words, people have the right to contact the party holding their personal data and ask them to erase it.

In an increasingly connected world, privacy regulations like the GDPR (Europe’s data protection and privacy law) have set new benchmarks for data protection, including stringent controls over targeted advertising and data management. While Australia is yet to implement these exact standards, the evolving landscape of privacy laws suggests that similar practices could soon become a norm within the country. This potential shift underscores the importance for Australian real estate businesses to adapt their data handling and marketing strategies preemptively.

For instance, should Australia adopt GDPR-like principles, real estate agencies would need to be vigilant in how they manage consent for marketing communications. A practical example of this can be seen in the scenario where an individual opts out of marketing materials. Agencies would then be required to not only cease communications but also ensure the individual’s data is promptly removed from all marketing lists, including targeted advertising platforms like social media, CRM systems, email campaigns, and SMS communications. Such measures, though not currently mandated to GDPR extents in Australia, represent best practices in respecting privacy and anticipating future regulatory requirements, positioning businesses at the forefront of ethical marketing and data protection.

Implications of the Small Business Exemption Review

Equally pressing is the review of the small business exemption under the Privacy Act 1988. Currently, most small businesses with an annual turnover of $3 million or less are exempt from the Act. However, with the government agreeing ‘in principle’ for the removal of this exemption, the landscape could dramatically shift, subjecting a vast array of smaller entities to the same rigorous privacy standards as larger organisations.

This proposed change underscores the importance of preparedness, particularly for individual agents and small agencies that may previously have been exempt. The potential for litigation arising from breaches of the Privacy Act cannot be understated. These businesses must proactively audit their data handling practices to ensure compliance ahead of the regulatory changes.

Navigating the Future

As the digital age continues to evolve, so too must our approaches to privacy and data protection. The impending updates to Australia’s Privacy Act serve as a clarion call to all real estate businesses, agents as well as tech/software providers: adapt or face significant consequences. Implementing robust data management and privacy protocols is no longer optional but a requisite for maintaining operational integrity and safeguarding against legal and reputational damage.

For real estate agencies and industry tech providers, now is the moment to act. Ensuring systems and practices are in line with the upcoming regulations will not only prevent potential legal challenges but also position businesses as trustworthy stewards of their clients’ data. As we move forward, adherence to these new standards will become a key differentiator in the competitive real estate market, underscoring the importance of privacy and ethical data use in building and maintaining client relationships.

In light of these changes, real estate professionals are advised to consult with legal experts and privacy specialists to navigate the complexities of the revised Privacy Act. By doing so, businesses can ensure they are not only compliant but also ahead of the curve in adopting best practices for data privacy and targeted advertising.

This pivot towards greater data protection is a significant milestone in Australia’s digital history. It reflects a global trend towards prioritising consumer privacy in the digital realm. As the real estate industry adjusts to these changes, the focus must remain on transparency, accountability, and respect for individuals’ privacy—a commitment that will ultimately benefit businesses and consumers alike.

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Disclaimer: This article is intended for informational purposes only and does not constitute legal advice. The information contained herein is based on our understanding of the proposed changes to Australia’s Privacy Act 1988 and its implications for the real estate industry. Given the complexity of privacy law and the specific circumstances of each business, readers are strongly encouraged to consult with a qualified legal professional to obtain advice tailored to their particular situation. While we strive to provide accurate and up-to-date information, we make no warranties or representations as to the accuracy or completeness of the content contained in this article and accept no liability for any loss or damage arising from reliance on it.

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