by Margaret Jackson, RMIT University

This article examines protection of our legal identity, that is, the information that might be required to identify an individual for legal purposes such as to gain government benefits or to be involved in legal transactions. Over the last 11 years, due primarily to the growth in internet activity, legislation has been introduced federally and in most states to address the theft of identification information. Other jurisdictions have also introduced identity theft legislation. Internet scams and hacking activities designed to obtain identification information has become an increasing problem in Australia and around the world and this article will consider the issues that arise.

Tips

• Identity theft laws exist in most Australian jurisdictions so if a perpetrator can be identified, the police can take action against them.
• Identity theft victims should be advised also that they can apply to a court in those jurisdictions for a certificate that indicates they have suffered from identity theft.
• However, much identity theft arises as a result of unauthorised access by hackers and thieves into personal records held by large organisations here and overseas.
• Australia is yet to introduce mandatory data breach notification so individuals rarely know that their identification information has been comprised.

Introduction

This article explores new laws, in Australia and overseas, focused on the misuse of a person's identification information, that is, information like a birth certificate, driver's licence, passport number or biometric data that can be used to legally identify a person. While misuse of personal information may include a person pretending to be another person to harm their reputation, (1) or a person pretending to be a fictitious person, particularly online, to hurt or ridicule another person, (2) the main focus of the article is on identity theft, when an impersonation occurs for the purpose of committing theft or fraud.

Crimes involving the assumption of a false identity or someone else's identity to gain an advantage are not new. What is new today is the scale of the activity, due to the global reach of the internet. Identity theft can take place on an international scale and thousands of people can be deceived. Identity theft is aided by the new techniques for aggregation and searching of data. (3) There are two main type of identity theft. The first type focuses on approaching individuals, directly or indirectly, through email or social media. The second focuses on hacking into the organisations that hold huge amounts of personal data.

The international nature of identity theft causes problems for police and regulators as laws operate nationally. In most cases, it will not be possible to arrest a thief based in Nigeria or Russia who steals the identity of an Australian; the most that can be done is to publicise the scams and educate the public.(4) There will be instances, though, where the perpetrator of identity theft is located in Australia and so the Commonwealth and most states have introduced some statutes to address identify theft activity.

(1) Applause Store Productions v Raphael [2008] All ER (D) 321 (Jul); [2008] EWHC 1781 (QB).
(2) US v Drew, 259 FRD 449 (CD California 2009).
(3) A Steel, "Forum: The True Identity of Australian Identify Theft Offences: A Measured Response or an Unjustified Status Offence?" (2010), 33 UNSW Law Journal 503, 505.
(4) See the Australian Competition and Consumer Commission (ACCC) warnings at Scamwatch.

Read full article at Internet Law Bulletin, March 2015, Volume 18 No 1.