Home Civil Law Dentons Kensington Swan – How Privacy Law Underpins New Zealand’s Contact Tracing...

Dentons Kensington Swan – How Privacy Law Underpins New Zealand’s Contact Tracing Regime


In the previous two weeks, Aotearoa has skilled its first ‘resurgence’ of COVID-19 in the neighborhood, following a 102-day interval with out group transmission.

Whether or not this newest outbreak was inevitable and/or whether or not future outbreaks are additionally more likely to ‘pop up’ from time-to-time because the world continues its battle to include COVID-19 can stay the topic of debate for one more day. 

One factor that’s clear although is {that a} swift and efficient public well being response to such outbreaks requires an environment friendly contact-tracing regime, by which the ‘perimeter’ of the outbreak will be recognized with accuracy and confidence, obviating the necessity for a extra widespread and draconian lockdown.

In order to work successfully, a contact-tracing resolution must be employed by a major proportion of the final number living, and must be in use earlier than the outbreak hits. Encouragingly, using the official New Zealand COVID Tracer app has picked up exponentially for the reason that starting of ‘Lockdown 2.0’, and appears set to change into a part of the brand new regular of life within the post-COVID world. 

However, there are different options accessible which will additionally change into part of on a regular basis New Zealand life, together with using a Bluetooth-enabled credit-card sized ‘COVIDCard’, which is the topic of trials as to its effectiveness – and helps plug the ‘gap’ in respect of the not insignificant variety of those that don’t have entry to an up-to-date smartphone and due to this fact can’t make use of the official COVID Tracer app.

Whatever the technological resolution that’s deployed, discovering an answer that truly works should be a precedence. New Zealand’s economic system – and society typically – clearly advantages from the lifting of social and financial restrictions that the standing of elimination affords us.

How will a contact-tracing system ‘work’? In brief, uptake is the important thing. The extra individuals who use the answer often, the simpler it will likely be for the Ministry of Health’s contact-tracing group to do its job: hint shortly and precisely the potential unfold of the virus, in order that these vulnerable to inflammation will be managed appropriately.

And how do you encourage uptake? Trust.

As the Privacy Commissioner has been eager to level out, any contact tracing know-how includes vital privateness implications for the person. The actions and interactions of every particular person who makes use of the COVID Tracer app or a COVIDCard will likely be collected by the federal government to an extent that has by no means been seen earlier than. 

While few folks maintain the view that the options proposed will – in apply – intrude into our private lives to such an extent that the sounds of George Orwell spinning in his grave will likely be heard from Timaru and Tokoroa, it’ll solely take one misuse of the knowledge collected to undermine the belief mandatory to make sure that the options are successful. Any obstacle to uptake should be itself ‘eliminated’ such that the best variety of individuals are utilizing the answer, with out reservation, as is feasible.

So maybe mockingly, we’d like a contact-tracing resolution that ‘leaves no trace’ – that’s, not less than till we’d like one. If we ‘take only photos’ (of QR codes) and ‘leave only footprints’ (digital ones accessible solely to those that ‘need to know’), the hint that we do depart will just do sufficient for the contact-tracers to do their jobs, and no extra.

This is what place privateness legislation has an essential function to play. Contrary to some commentary concerning the perfect response (which counsel throwing privateness legislation out the window), an answer designed with the rules of privateness legislation in thoughts is an enabler in relation to contact-tracing, somewhat than a barrier. This is as a result of an answer designed with privateness as its spine will meet public expectations by way of the important thing questions of what, how, and why private data is being collected and used to attain the targets of contact-tracing, thereby engendering the belief within the resolution that’s essential for its uptake.

The resolution:

  • ought to solely accumulate a lot private data because it must with a purpose to fulfil its objective
  • ought to accumulate private data in a approach that’s honest and doesn’t unreasonably intrude on a person’s private affairs
  • should defend the knowledge with safety safeguards which can be cheap within the circumstances
  • should solely maintain the knowledge for as long as is important
  • should solely use the knowledge for the needs for which it’s collected
  • depends on transparency, in that it should be clear to people precisely how their data will likely be used.

All of the above rules are in step with the prevailing data privateness rules set out within the Privacy Act 1993 (quickly to get replaced by the Privacy Act 2020 – see here for extra particulars). And all of them are essential to delivering an answer that the ‘team of 5 million’ is ready to belief and depend on – thereby resulting in the uptake that may make the answer efficient, dependable and complete.

Throwing privateness legislation ‘out the window’ is counterproductive on this regard: if we can’t be sure that our private data will likely be treated with the respect it deserves, and solely utilized by the federal government within the very restricted – however mandatory – circumstances of contact-tracing, it will likely be onerous for even the persuasive Dr Bloomfield to persuade us to have interaction with the answer.

There will in fact be some who stay steadfastly of the view that the options provided are ‘not for them’. And it’s tough to envisage an answer which utterly mitigates the danger of human fallibility – if you’re the sort who forgets your pockets as you’re strolling out the door, likelihood is you may overlook to take your COVIDCard with you. It can also be essential to keep in mind that know-how  – any know-how – can solely ever be a part of the answer. The artwork of contact tracing with a virus as difficult as COVID is as much Sherlock Holmes as it’s CSI.

However, constructing an answer with privateness in thoughts will assist eradicate yet one more barrier to the essential mass of uptake of the know-how mandatory to tell the social science that’s contact tracing, within the least intrusive approach doable.

If you could have any questions round privateness, together with compliance with The Privacy Act 2020, please contact Hayden WilsonHayley Miller or Campbell Featherstone.


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