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To come with clean hands Charles Mabbett
29 September 2017

clasped hands2

When we use the metaphor ‘to come with clean hands’, it means to have done nothing underhand or illegal. It’s a term that applies in the context of resolving privacy disputes. There’s a general expectation that if you make a complaint to our office, you did not bring the breach of privacy upon yourself through your actions.

In a recent case, our complainant was a man who had ripped off a business. He had scammed the business out of several hundred dollars worth of goods but became upset when the business named and shamed him on its Facebook page.

Facebook post

The man claimed he had been left devastated after the business published information about him including photos of his driver’s licence, a bounced cheque, and one taken by a security camera of him at the business. The Facebook post attracted thousands of views and the majority of comments posted by readers were uncharitable to the man – to put it mildly – with many people referring to his colourful past and previous encounters with the law.

In his complaint to our office, the man said he lived in a small community and word quickly spread of the Facebook post. As a result, he and his family had to endure abuse from others in his community. He said his anxiety and depression hit a new low because of the Facebook post and online comments. The man said he wanted more than $50,000 in compensation from the business.

No cash or credit

When we contacted the business, the business owner explained the events that prompted the Facebook post. The man had arrived and wanted to purchase the goods but did not have the cash or credit to pay for them. He offered instead to pay by cheque and refused to leave without the products because he had driven four hours from where he lived. The man gave his permission for the business to keep a copy of his driver’s licence and to report him to Police if his cheque was dishonoured. The two parties came to an agreement that the man could take half the goods he wanted to buy and the rest would be sent to him after the cheque cleared.

The cheque bounced. The business tried many times to call the man’s mobile but the calls were not answered or messages responded to. When the business owner googled the man’s name, he discovered he was well known in his area for his scams. Within an hour of posting the man’s information on Facebook page, the business was receiving messages and phone calls from people wanting to share similar stories about the man’s past behaviour.

Apology

Later that day, the business received Facebook messages from the man’s son asking it to remove the post. The business owner said he would delete the post and withdraw his Police report, if the debt was paid. But hours later, even though no payment was received, the business owner took down the post. He then received a phone call from the man saying he would make an online payment if the business posted an apology. The business owner complied with an apology but still no payment arrived.

We asked the business owner what the grounds he relied on were for disclosing the man’s information on Facebook. Principle 11 of the Privacy Act says an agency that holds personal information should not disclose the information unless one of the exceptions to the principle applied. The business owner said the main exception he relied on was disclosure was necessary to lessen or prevent a serious threat.

Good faith

We didn’t agree. We were not satisfied the man’s actions met the definition of serious threat. However, while we were not satisfied the business could disclose the man’s information, we decided the man had not acted in good faith in dealing with us. He had not paid for the goods he had taken, nor did he return the goods. He also failed to provide us with evidence to assess whether or not he had experienced harm as a result of the Facebook post, despite wanting over $50,000 in compensation from the business.

We decided to close the file. Acting in good faith is an important part of participating in our complaints process. In our view, the man had fallen well short of engaging with us in an open, honest and transparent way. The Privacy Act is not a law that a person can game if you don’t come with clean hands and honest intentions.

Image credit: Clasped hands via Public Domain Pictures

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  • This is a case where two wrongs don't make a right. Whilst the actions of the man seem to be unquestionably criminal, the business should have taken the matter to the Police for them to deal with, rather than naming and shaming in such a public manner. In taking matters into its own hands, the business runs the risk of losing its credibility in how it deals with such matters.


    Posted by Bob Robertson, 04/10/2017 4:52pm (15 days ago)

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    The aim of the Office of Privacy Commissioner’s blog is to provide a space for people to interact with the content posted. We reserve the right to moderate all comments. We will not publish any content that is abusive, defamatory or is obviously commercial. We ask for your email address so that we can contact you if necessary to clarify your comment. Please be respectful of authors and others leaving comments.

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The aim of the Office of Privacy Commissioner’s blog is to provide a space for people to interact with the content posted. We reserve the right to moderate all comments. We will not publish any content that is abusive, defamatory or is obviously commercial. We ask for your email address so that we can contact you if necessary to clarify your comment. Please be respectful of authors and others leaving comments.

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