The issues pertaining to identity theft liability and compensation are something that varies from one country to the next. Fortunately, for those believing that they are victims to identity theft, there are now different legislations in most countries that can help them to seek remuneration.
Some of these legislative avenues of recompense come in the form of criminal law statutes while others are manifest through various aspects of privacy and freedom of information laws. Inconsistencies in these legislations, from one country or region to the next create the “unlevel playing field”.
Legislation
A number of recent identity related legislative changes in most countries do help to one extent or another. The difficulties lie in the variation and diversities of these legislations. On top of this, there are some very surprising aspects the implications of which we are yet to learn the full extent.
New laws tend not to reveal their full extent and granular implications immediately upon enactment. As to whether these new privacy and identity theft laws have any real “teeth”, well I guess in part we will just have to wait and see.
Legislative Inconsistencies
Not only do inconsistencies in privacy legislation and criminal law differ between countries they may also differ between various regions (state) within a country. The resultant confusion, particularly at the individual level, has proven to be very profitably exploitable by identity thieves.
In Australia we have numerous, often different and not always complimentary legislation at both the state and federal levels. The Australian Federal government has enacted privacy legislation (The Privacy Act) pertinent to privacy matters and personally identifiable information (PII) from their perspective. Some Australian states are yet to follow suit.
I am sure that those in the US will readily identify with this state of affairs since the same situation exists there. European countries (EU members in particular) also face regional anomalies in privacy legislation. The EU may have a set of overall regulations but some member countries have enacted extensions to these laws.
I will therefore address this issue from a general perspective while highlighting certain aspects of which general public awareness appears to be lacking. As always, when it comes to the law, the first issues that need addressing are interpretation of law and loopholes. Let us begin with issues related to loopholes.
Loopholes - After the Fact
Often those formulating the legislation find that their original intent and purpose applied or empowered through the courts in manners they could not possibly have foreseen. “Loop Holes” only become apparent and exploitable after the fact.
In general, legislators do not deliberately formulate law with a view to provisioning loopholes. Legislation once enacted becomes “open” to interpretation. Criminals are generally the first to test these waters. It is usually at this point that attorneys become active in the battle.
The battlegrounds will be our courts. The judiciary, no matter how well intended, have no option but to be the referees and arbitrators of the battle. The letter of the law may be clear but it is in the interpretation of the letter of the law that sees the true heat turned up and external pressures brought to bear.
Interpretation of Law
Interpretations of law that were in the best public interest fifty years ago may no longer be appropriate. The rapid pace at which technology is evolving places additional requirements meriting consideration when passing judgment based on interpretation of law.
Today we have a whole bunch of technologies, which identity thieves can exploit to their advantage. The Internet is but one. Many older laws make no provision for the Internet since it never existed at the time of formulation of the legislation. As a result considerable legal debate has occurred.
The judiciary for their part has little option but to pass judgment based on interpretation of existing law. At least until more appropriate amendments to existing law or new laws are drafted and enacted.
Health Related Information
Medical records attract special consideration and rightly so. In the USA, for example, your medical records and other health related details do have additional, stricter controls and protection afforded them under the current state and federal HIPPA regulations.
In Australia, very strict controls are now in place to regulate and protect your personal health information from random and casual disclosure by authorities and government bodies. All federal government agencies, bodies, departments and contractors must comply with federal privacy legislation.
The Australian Federal Government's Privacy Act and subsequent amendments require specific minimal standards for all (organizations and individuals) who possess, handle, manage, store, access and dispose of health related information.
Unlike other areas of the Privacy Act there is no opt out provision. If you are involved in the health care industry in any manner, shape, or form you must comply with the health related provisions contained within the Privacy Act period.
