NSW Councils advertising inserts may breach privacy law

It's fairly common practice for NSW local councils to include in the mail out of rates and other notices, advertising material for which they receive a direct or indirect benefit. Some recipients regard this as unsolicited advertising, and it would be wise for councils to at least provide an opportunity to "opt out". One ratepayer has taken the matter to the NSW Administrative Decisions Tribunal arguing that the practice involves a breach of the use principle in privacy legislation (Section 17 of the Privacy and Personal Information Protection Act (PPIPA)).

In AK v Gosford City Council (2007) NSWADT289 the complainant argued that a four page flyer that consisted of advertising material for companies linked to a prize for the early full payment of rates sent to him with his rates notice, was a use of personal information for a purpose not directly related to the purpose for which the personal information had been collected. The Council had been engaged in this practice since 1992. The ADT decided that it was unobjectionable to include in an insert information about the Council, and information about prizes relating to the payment of annual charges. However the inclusion of other material about company products or services could could involve a breach of the privacy principle.

The Tribunal (para. 20-23) was of the view that an exemption in the Privacy Code of Practice for Local Councils may apply, and (at para. 25) that the ratepayer may have in effect consented to this use if material of this kind had been sent to him and he had failed to previously complain about misuse of personal information.

As the Tribunal did not have evidence on these matters it referred the issue back to the Council for resolution.