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The EU General Data Protection Regulation contains (in Article 17) the right for a data subject to obtain from a controller erasure of her or his personal data. That means that if personal data are: (a) no longer necessary for the purpose for which they were collected, or (b) the data subject withdraws consent that had been given to the processing of data, or (c) the data subject objects to the processing (for example, processing her or his personal data for direct marketing purposes, or processing her or his personal data where there are no longer legitimate grounds that override her or his interests, rights and freedoms), or (d) the data subject is a child and personal data have been collected to offer online services to that child, the controller has the obligation to erase data subject’s personal data. Does the New Zealand Privacy Act 2020 offer individuals similar entitlements? Explain how an individual could claim under the Privacy Act 2020 the entitlement to erase her or his personal information held by the agency in those situations?

Question

The EU General Data Protection Regulation contains (in Article 17) the right for a data subject to obtain from a controller erasure of her or his personal data. That means that if personal data are: (a) no longer necessary for the purpose for which they were collected, or (b) the data subject withdraws consent that had been given to the processing of data, or (c) the data subject objects to the processing (for example, processing her or his personal data for direct marketing purposes, or processing her or his personal data where there are no longer legitimate grounds that override her or his interests, rights and freedoms), or (d) the data subject is a child and personal data have been collected to offer online services to that child, the controller has the obligation to erase data subject’s personal data. Does the New Zealand Privacy Act 2020 offer individuals similar entitlements? Explain how an individual could claim under the Privacy Act 2020 the entitlement to erase her or his personal information held by the agency in those situations?

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Solution

The New Zealand Privacy Act 2020 does offer similar entitlements to individuals regarding the erasure of their personal data. Under Principle 7 of the Act, individuals have the right to request correction of their personal information. If the agency holding the information does not agree to make the requested correction, the individual may require that a statement of the requested correction be attached to the information.

In the situations described:

(a) If the personal data is no longer necessary for the purpose for which it was collected, an individual can request the agency to correct (which includes erasure) the information under Principle 7.

(b) If the individual withdraws consent to the processing of data, they can request the agency to stop using the information (Principle 10) and to correct the information.

(c) If the individual objects to the processing, they can request the agency to stop using the information (Principle 10) and to correct the information.

(d) If the individual is a child and personal data have been collected to offer online services to that child, the individual or their parent or guardian can request the agency to correct the information.

To make a request, the individual should contact the agency holding the information directly. The request should be made in writing and should clearly identify the individual and the information to be corrected. The agency has 20 working days to respond to the request.

If the agency refuses the request, the individual can complain to the Privacy Commissioner. The Commissioner can investigate the complaint and make a decision. If the individual is not satisfied with the Commissioner's decision, they can appeal to the Human Rights Review Tribunal.

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