Following revelations that landlords have been compiling lists of “bad tenants” on Facebook, the Privacy Commissioner has announced that he will be investigating what information landlords are asking of prospective tenants.

Collecting, storing, using personal information

Under the Privacy Act, landlords must only collect personal information necessary to carry out their business, i.e. renting residential property to tenants. This may include collecting information about the tenant’s ability to pay rent, whether they have pets or are a smoker, and information needed to verify the identity of an applicant.

Generally personal information should be collected directly from a prospective or current tenant, although certain exceptions apply such as where the tenant consents to the landlord obtaining a reference from a previous landlord or a credit check from a credit reporting agency.  Personal information can be obtained from another source, provided doing so does not prejudice the tenants’ rights. 

Landlords should take particular care if obtaining personal information about a tenant other than from the tenant, to ensure they comply with the exceptions in the Act.  Tenants must be made aware of personal information that is being collected, and its intended use, again unless an exception applies.

Any collection of personal information that goes beyond the purposes of the landlord’s business risks being an unnecessary collection of personal information in breach of the Act.

Additionally, when a landlord collects tenants’ personal information, they have an obligation to keep it safe and check its accuracy before using it.

Breaching the Privacy Act

Where a landlord collects, stores, uses, or discloses personal information in breach of the Privacy Act, the Privacy Commissioner can issue a compliance notice ordering the landlord to comply with their responsibilities under the Act. If a landlord breaches a compliance notice, it can be enforced in the Human Rights Review Tribunal with a fine of up to $10,000.

The consequences are potentially far more serious where tenants’ personal information has been disclosed on Facebook without their permission. The information on the “bad tenant list” potentially breaches several obligations that landlords have under the Act, including:

-          Failing to check the information’s accuracy before disclosing it;

-          Disclosing the personal information without the tenant’s permission; and

-          Using the information for a purpose other than that for which it was collected.

Interference with an individual’s privacy

Aside from the publication of unchecked personal information on Facebook being potentially defamatory, if a tenant is harmed by the publication, the landlord may have interfered with their privacy which is an offence under the Privacy Act

If this is the case, a complaint may be made to the Privacy Commissioner, and if no resolution is reached following an investigation, the tenant may make an application to the Human Rights Review Tribunal. The Tribunal can make several orders, including for the payment of damages and legal costs.

Landlords must comply with the Privacy Act

It is extremely important that landlords ensure that they are complying with their privacy obligations when collecting, holding, and using the personal information of all prospective and current tenants. Failure to do so may result in an investigation by the Privacy Commissioner, and potentially costly fines for breaching the Privacy Act. 

If you are a landlord and have concerns about how you collect, store, and/or use tenants’ personal information, it is wise to speak with a professional experienced in the area. 

If you are a tenant and are concerned about how a landlord is treating your personal information, you should seek expert advice to understand your rights.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-priced Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

 


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