IS CUSTOMER METADATA CAUGHT BY THE PRIVACY ACT?

The recent determination of the Privacy Commissioner in Ben Grubb v Telstra Corporation Limited [2015] AICmr 35 has clarified the extent to which metadata collected by telecommunications providers will constitute ‘personal information’ for the purposes of Principle 6.1 of the National Privacy Principles (NPP 6.1).  NPP6.1 was the precursor to, and is the equivalent of, the current Principle 12 of theAustralian Privacy Principles).

In short, the scope for metadata to be caught by the Privacy Act is broader than many may have considered, which will have cost consequences in planning for Privacy Act compliance.

In 2013, Mr Grubb (the Complainant and a technology journalist for the Sydney Morning Herald) requested that Telstra provide him with ‘all the metadata information Telstra has stored’ in respect of his mobile phone service, which ‘would likely include which cell tower I’m connected to at any given time, the mobile phone number of a text I have received and the time it was received, who is calling and who I’ve called…’

The Complainant’s request was made pursuant to NPP 6.1, which obliges an organisation to give an individual all ‘personal information’ that it holds about that individual, subject to some exceptions. An organisation is not compelled to provide information where:

1. Providing access would have an unreasonable impact upon the privacy of other individuals;
2. Providing access would be unlawful;
3. Denying access is required or authorised by or under law.

By the time that the matter came before the Privacy Commissioner for determination, Telstra had responded by providing a great deal of information including details of:

1. His outbound calls (including the numbers he called, the time and duration and cell towers involved in such calls);
2. His network type;
3. ‘Subscriber information’ relating to his account.

However, Telstra refused to provide:

1. Network data;
2. Incoming call records.

The question before the Privacy Commissioner was whether the metadata in relation to network data and incoming call records which was held by Telstra constituted personal information, and if so, whether it had been improperly withheld by Telstra in breach of NPP 6.1.

Network Data

Telstra argued that the metadata concerning network data was not personal information as defined under the Privacy Act 1988 (Cth) for the reason that the Complainant’s identity was not apparent, nor could it reasonably be ascertained, from that data. Telstra submitted that the data sat in complex network management systems, and that to identify an individual or collect the data would be burdensome in terms of complexity, time and cost.

However, the Commissioner found that by cross-referencing data, an individual could be identified and thus the network data constituted personal information. Telstra could identify individuals from this data – and they routinely did so in response to law enforcement agency requests. Further, the Commissioner considered that the time and cost of retrieving the data must be viewed in light of the resources of the organisation. Telstra had 120 staff trained and employed for the purpose of such data collection. In the circumstances, the Commissioner considered the process of data collection to be reasonable relative to Telstra’s resources.

Incoming Call Records

Telstra submitted that incoming call records were not the personal information of the Complainant, but rather constituted the personal information of the third parties who had made the calls. It was Telstra’s position that if that information was disclosed would have an unreasonable impact on the privacy of the incoming callers, and would potentially constitute a breach of the Telecommunications Act 1997 (Cth) which regulates the use and disclosure of telecommunications data.

The Complainant’s position was that in cases where the calling number display had not been blocked or the option of a silent line had not been exercised, there was no unreasonable impact on the privacy of those making the incoming calls as he would have been able to see their number on his phone at the time of the call.

The Commissioner found favour with Telstra’s submissions on this issue  because third party information of a personal nature would be included in the information provided to the Claimant.  This would have included callers with silent numbers or those who called the wrong number who would not have intended that their information become available to the Complainant.  The Commissioner recognised that it would be impossible for Telstra to edit the incoming calls to provide only the numbers of those individuals who intentionally contacted the Complainant and did not have a silent line.

Conclusions

The Commissioner’s finding  in this case helps businesses identify that the scope of what may properly be considered to be ‘personal information’ is potentially very broad. This is particularly so for a large, well-resourced organisation such as Telstra, which has the ability and resources to match data sets.

3 TRICKS THAT TOTALLY TUNED UP MY TINDER CONVERSION QUALITY [LIFESTYLE HACK]

To Meet Tomer in person, join us at our next MeetUp (24th May 2016) here :

Excuse the deviation from my regular, business growth-oriented writeups. I was sitting around with a few buddies having drinks last weekend, and we got on the topic of dating, specifically, Tinder. As we shared stories of terrors and triumphs, I found myself describing the process in which I use Tinder in a more strategic manner for quality control. That process, although quite normal to me, was quite an abstract one when spoken aloud. I was told this stuff needed to be published. So here we are. This was fun to write.

Why am I writing this? I am genuinely looking for love, but like most people, I lack the time to explore the plethora of dating options, let alone facilitate infinite numbers of dates to find compatible partners. My recent dating journey is about unlocking quality over quantity, so I spend my time talking to, and potentially dating, the right matches. While this is technically conversion hacking with intent to positively influence success rate, I am genuinely still being me, just representing myself in the most effective way. This guide is for those wanting to save time, and attract the most elegible bachelorettes (or bachelors).

When I look at what I do as a growth hacker, it’s a complete left-brain/right-brain game. On one hand, you’re being completely analytical, clinical, precise, and on the other hand, you’re crafting highly creative/speculative experiments to act on that data. You’re the scientist and the artist, simultaneously.

The way your brain works when growth hacking sparks an onflow of ideas, far beyond the reach of simply growing a startup’s conversion funnel (and profits).

So it got me thinking. What lessons can I take from growth hacking and transplant to my lifestyle, to hack an unfair advantage over the competition?

Lessons from growth hacking for an unfair advantage over the competition. @TomerGarzberg

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Interestingly enough, the lessons learned from this experiment can be used to inspire growth professionally (such as thought leadership and networking) and profit attraction (growing a new business and attracting top talent), or a pure lifestyle play. Take from this as you must.

The Dating Game: Tinder

For those unfamiliar with Tinder, it’s a dating app. You upload a few pics, write a bio, set your proximity radius for matches, and start swiping for matches. Left means ‘no’, right means ‘yes’. If you swipe ‘yes’ to someone, you are unable to facilitate a conversation with them unless they swipe ‘yes’ to you too. It’s simple, effective, and highly addictive… and it works.

It’s no fad, either. With 50 million users, 24 languages and a $5 billion valuation and recent monetisation of its user pool, it’s the most serious player in the congested ‘online dating’ industry. In fact, the average Tinder user spends 77 minutes swiping every day.

The Swiper’s Challenge: Acquisition

Tinder users swipe with ferocity. With only a split-second, if that, to make an impression on someone on a swiping-spree, there’s no time for second chances. The question is, what can you bring to the table that’s going to make your potential suitor stop in their tracks?

If you’ve got a shirtless tattoo-laden image, drinking a beer whilst patting a sedated tiger in Bali (note: the overused Tinder stereotype for Australians, I’m positive each nation has their own), then questioning why your success rate isn’t what it should be, then it’s time to put your clothes back on and start promoting yourself like a champ.

It becomes a game of greatness vs gimmicks. Do you present yourself as a breath of fresh air, or as a ‘one and the same’ kind of person? What kind of person do your intended swipers see you as?

This is the part we don’t know for sure. If you’re already dressing and acting the part of the type of significant other you’d like to attract, then you’re partially there, though the weight of your ‘compatibility’ is based on how you’re portrayed in the images you’re presenting, especially the first one.

This is kind of like display advertising on the internet and apps. We see so much of it, we’re desensitised. The only thing we’re going to pay attention to and perhaps even convert with, is something that appeals to our very personal foundations as a human on this planet. Falling short of that, you’re left-swiped in an instant.

The only reason we’re going to convert, is what appeals to our foundations as a human @TomerGarzberg

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My experiment involved my own perception of the best image representations of myself, coupled with a bio written with a call-to-action methodology, followed by refreshing an approach to retention in a landscape where my female audience has ‘heard it all before’.

How I Did It: The ‘ABC’ Tinder Experiment

The ‘ABC’ @Tinder Experiment: ‘Appearance’, ‘Bio’ and ‘Chat’. @TomerGarzberg

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I decided to approach this by experimenting with the three things I had control over when being represented to potential matches. They are my ‘Appearance’, my ‘Bio’ and my ‘Chat’. Here’s how I went.

Baseline Data:

• Image Count: 6
• Image Order: No specificity
• Controls: None
• Bio: Basic
• Matches: Circa 50
• Retention: Circa 15

A. Appearance Experimentation:

• Image Count: 6
• Timeframe: 6 weeks
• Image rotation: Weekly
• Control: Selective 20 daily right swipes
  
• KPI: Matches

This experiment is relatively straight-forward. Out of my pool of six images, rotate the main image on a weekly basis. Swipe through matches daily until I have swiped 20 right swipes (women I would actually want to match with). Keep a score of the amount of reciprocal right swipes (essentially, women matched with).

Highest performing image order (82 matches from 140 swipes):

B. Bio Experimentation:

• Timeframe: 12 days
• Bio Rotation: 4 days
• Control: Selective 20 daily right swipes
• KPI: Matches

With this experiment, I started off with a 5-line bio and made sure it covered:

• A pleasure-point for intellectual women
• A teaser of what I do (to build intrigue)
• Tickbox items of elements women tend to look for in a man
• Asked for what type of women I’d like to be matched with
• Supporting online assets

Highest performing bio representation (93 matches from 140 swipes):

C. Chat Experimentation:

Once I had my matches I tested opening lines by using compliments that don’t mention their physical appearance (I found this to be the most effective way to differentiate social intelligence from my matches). If they thanked me, and reciprocated with a compliment or a question of their own, they would qualify as a retention-oriented match (over matches that used one-line answers and had poor conversation skills). I’m a big fan of women who are master conversationalists, so this was an important filter for me.

Roughly only 25% of the matches (45) had this positive reciprocal chat-charisma characteristic so I focused on these alone. To keep the conversation moving towards the inevitable phone number/date question, I’d use chat techniques that have helped me keep and manage business relationships for over a decade:

• Used chat-invoking questions (simple networking practices)
• Used active listening and made the conversation about them
• Interjected with witty banter where opportunities presented themselves

 

The takeaway: Just be a badass human listening machine, that presents themselves as someone they could bring home to meet the parents.

The takeaway: Just be a badass human listening machine. @Tinder @TomerGarzberg

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What I Learned: The 3 P’s of Tindering:

1. Product-Market Fit (Acquisition)

You aren’t going to attract every suitor on Tinder, but you do have control over the quality and types of suitors you can attract by the way you represent yourself. Who are you trying to attract, and what do they look for?

The image you use first needs to be representative of the types of things that your ultimate swiper would find appealing. The bio is where you can be explicit in what you’re looking for. This filters out the quality respondents meaning you spend less time talking to the wrong matches.

2. Powerful Presence (Conversion)

Command their attention from the start, be interesting and detract from your ideal ‘end-game’ scenario, regardless of what it is. I found uniqueness and portrayal of social intelligence to be the key factor in early conversions. It sets you apart and helps you keep ‘active listening’, as you’re concentrating on how you can relate to what they’re saying, as well as finding new avenues for conversation growth.

3. Pleasure and Pain (Retention)

If it’s really someone you wish to pursue, it’s time to ask questions and dig deep into what makes them happy, and their biggest problems in life (and how you can solve it). Asking about their dating experiences, the types of people they don’t like to swipe and the types of people they do, is like a customer service survey for you, and ensures you’re steering clear of traps that will undo all your hard work.

The 3 P’s of @Tinder: Product, Presence and Pleasure @TomerGarzberg

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Got an interesting Tinder hack? Do you apply Growth Hacking elements in non-business oriented parts of your life? Share them below!

~ Tomer Garzberg

To Meet Tomer in person, join us at our next MeetUp (24th May 2016) here :

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NEGOTIATING CONTRACTS BY EMAIL, ARE YOU BOUND BEFORE YOU THINK YOU ARE?

To Meet Michael in person on the 24th May 2016, join us at our next MeetUp here :

It is common practice to engage in pre-contractual negotiations via email, in doing so you run the risk that those emails are considered evidence of a valid and binding contract and a court may compel performance of the contract, even where parts of the agreement are not finally agreed.

Common phrases such as ‘subject to contract’ in an email may no longer be sufficient to disprove an intention of the parties to enter into a contractually binding agreement.

This has been shown most recently in the decision of the Supreme Court of Queensland in Stellard Pty Ltd & Anor v North Queensland Fuel Pty Ltd [2015] QSC 119, where the Court examined whether an offer to purchase a service station business and the associated land made via email and ‘subject to contract and due diligence’ constituted a binding agreement.

Expressions of interest and negotiations took place via email to sell  freehold land and the business of the service station.  The parties engaged in continued negotiation via email, eventually agreeing on the the essential terms of the contract such as price, settlement date, stock and conditions of sale.

The plaintiffs claimed that a contract for sale was effectively constituted by those emails.  The defendant’s position was that there was no intention of the parties to be legally bound as there was no memorandum sufficient to constitute an agreement for sale and the email stated that the offer was made ‘subject to contract’.

Principles applied by the court

In coming to a decision the court applied the principles set down in Masters v Cameron [1954] HCA 72 as summarized in Halsbury’s Laws of Australia:

Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the subject matter of their negotiation is to be dealt with by a formal contract, the case may belong to any of three classes:

1. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect;

2. It may be the case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more terms conditional upon the execution of a formal document;

3. The case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.

Whether or not a contract has been formed requires an objective determination of the intention of the parties. In Ermogenous v Greek Orthodox Community of SA Inc[2002] HCA 8 the Court said:

It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of legally enforceable duty.

To be a legally enforceable duty there must be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement.

Yet the circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts.

In Stellard the Court held that the parties had intended to enter into a contractual agreement and accordingly were immediately bound by its terms. The mere fact that the emails stated that the offer and acceptance was ‘subject to contract’ indicated that the agreed upon terms would be formally recorded at a later point in time.

Another recent decision on this topic is that of Pavlovic v Universal Music Australia[2015] NSWCA 313, where the New South Wales Court of Appeal came to a different conclusion to the Court in Stellard whilst still applying similar reasoning.

The Court of Appeal in Pavlovic stated that the three classes set out in Masters v Cameron are not to be applied as strict categories into which cases must fall.  Rather, the decisive issue is always the intention of the parties, ascertained objectively from the terms of agreement, read in light of the surrounding circumstances.

Their Honours held that:

Whether parties intend to bind themselves to a contract is determined objectively, having regard to the intention disclosed by the language the parties have employed. In cases which do not depend on the construction of a single document, what is involved is an objective determination of the question from the communications between the parties in their context and the parties’ dealings over the time leading up to the making of the alleged contract. This involves a consideration of the subject matter of the communications and what the parties said or wrote.

The facts in Pavlovic were similar to Stellard. Negotiations to terminate a joint venture took place via email with all correspondence being subject to a formal written agreement. The final piece of correspondence between the parties was an email on 24 December 2014 allowing for “a further 48 hours to sign the documents and forward copies to us”.

Bathurst CJ stated that the 48 hour window that was granted by the client for the signing of the agreement was inconsistent with a view that there was a contract already in place.  That very email indicates that there was no intention by either party to enter into a legally binding agreement up until such a time as a formal agreement was executed.

Where to from here?

Each of the two decisions came to opposite conclusions, however each turned largely on its own facts.  What is important to note from both decision is that:

1. it is not the parties’ subjective intentions in entering into negotiations that are most relevant, but rather what can be objectively ascertained from the correspondence and surrounding circumstances as to what those intentions were.
2. it cannot be assumed that including “subject to contract” in email negotiations will, of itself, show an intention by the parties not to become legally bound.  The court will require explicit and continued mention of the intention of the parties.
3. In deciding whether the parties intend to be bound, an objective assessment of each parties’ intention and the surrounding circumstances giving rise to the dispute will need to be undertaken.
4. It is essential that great care is taken when engaging in email correspondence concerning negotiations to avoid becoming legally bound where you or our client have no intention to do so.

For more information contact ERA Legal.

To Meet Michael in person24th May 2016, join us at our next MeetUp here :

Growth Hacking Exposed!

Tuesday, May 24, 2016, 6:00 PM

BlueChilli
125 York Street Sydney, AU

18 Members Attending

NEURO-PERSUASION! LEGAL LIMITS! SOFTWARE WEAPONS!What is Neuro-persuasion, how far can you go (Legally) and what weapons can you use.Tomer, “is the real deal” when it comes to Growth Hacking with his own company Gronade offering Growth Hacking solutions for StartUps.Michael, will outline how to avoid a few of the legal pitfalls surrounding Growt…

Check out this Meetup →

Need capital for your Startup?

Need capital for your Startup?

Tonight we have speakers that can help. How do you approach investors? How do you network to find them? How do you position yourself and your company to be successful? And how do you innovate to bootstrap your venture while you seek investment? Peter Thornton from iProsperity (capital) will share his extensive experience and knowledge to help you win!

“Don’t worry I’m from the government!” Did you know that the government can help with grant money? Do you know what is coming through parliament and how it can help you? You might think the government will not help your Startup, well think again. We are doing a deep dive into R&D tax with both Brett and Tim offering insights from both the do-it-yourself perspective and from a professional service. Oh, and don’t think you need to have revenues or be profitable to claim R&D tax benefits. You can get cash to boot strap your Startup now!

Meetup Agenda

6:00 Networking

6:15 Welcome & Keynote

6:30 Learn how to pitch me for a million dollars and win!

7:00 R&D Tax – do it yourself

7:30 Government Grants & R&D Tax – using professionals

8:00 Networking + food & drink

9:00 Close

Speakers

Peter Thornton,     iProsperity Group, Director of investments and strategy

Brett Samuel,         Founder iNerds

Tim Buchhorn,       Client Director – R&D and Government Grant Services

Pete Cooper,          Founder Sydney Startups, Skillion bikes

Please note: The ticket covers the costs of the BlueChilli Venue, food (pizza & fruit, drinks), drink’s server, door person and the Meetup charges – the speakers offer their time for free.

• Shiv Tripathi

  Great insight Peter on R & D stuff. Thanks

  Like · Reply · 2 days ago · Mute

• Ramesh Prasad

  Grate insights on fund raising and networking opportunity.

  Like · Reply · 4 days ago · Mute

• • Pete Cooper

    Hi Ramesh, thanks I’m glad you found it useful. – Pete

    Like · 2 days ag

  • ellen rubbo

    Hey Pete have sent you two emails… have they come through?

    Like · 2 days ago
• 

  Luke Lambert

  Learnt about the government incentives which was good

  Like · Reply · 2 days ago · Mute

Meet 4 Startup industry leaders

Meet 4 Startup industry leaders

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• March 22 · 6:00 PM
• BlueChilli

Meetup Agenda

6:00 Networking

6:15 Welcome & Keynote

6:30 10 commandments of Startup sales

7:00 Business Model innovation

7:30 Startups and Importing

8:00 Networking + food & drink

9:00 Close

Speakers

Andy Farquharson  – Selix B2B Sales

Noric Dilanchian –  Managing Partner of Dilanchian Lawyers

Ian Schoots Managing Director – Australian Importing Club

Pete Cooper Founder Sydney Startups – Skillion bikes

Please note: The ticket covers the costs of the BlueChilli Venue, food (pizza & fruit), drink (wine and mineral water), drink’s server, door person and the meetup charges – the speakers offer their time for free.

How was the Meetup?

• 

  Ru Liu

  Greetings! Of course! The presentations were in a dynamic and compelling manner. They earn compliments!
• 

  Pete Cooper

  Hi Ru, thank you for the kid words, would you mind if I sent that comment on to our speakers etc?
• 

  Ru Liu

  Can’t give enough praise to all 4 speakers. It was well prepared, informative and interesting! Thank you so much!
• 

  Pete Cooper

  Excellent
• 

  Matt

  Some interesting presentations and a great group of people – looking forward to future meet ups

 

26 went

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5upload

• Jun 2, 2015 · 6:30 PM
• BlueChilli

Hi Sydney Startups, Continuing on the “Innovating Your Startup” series this even…See all