There have been increasing reports of registered clubs demanding evidence of identity of patrons, scanning identity documents, even taking photographs, and in some particularly extreme cases gathering fingerprints.
What Can Clubs Reasonably Do?
When you seek entry to a club, it is reasonable, and in some circumstances it may be a legal requirement, for the club to ask for evidence of membership, or evidence of other grounds for entry to the club (such as residential address), or evidence of age. The kinds of evidence you might provide probably disclose your identity, but that is only incidental to the primary purpose of being evidence of membership, location of residence, or age.
If you breach the law, or the reasonable conditions of use of the club, then the club may take additional actions. Particularly if the breach is serious, such as a breach of the law, or repeated anti-social behaviour such that the club may reasonably bar the person from future entry to the club, further privacy-invasive actions may be perfectly reasonable in relation to that person, such as photographing them, and seeking their identity from the person themselves and from others, and recording the person’s identity.
What Clubs Must Not Do
It is a serious breach of privacy for a club to:
- demand evidence of identity from all visitors
- store identification data relating to all visitors
- take copies of identity documents, which are inevitably sensitive in nature
- demand photos of all visitors
- capture any person’s biometrics
These actions capture sensitive personal data, and are not justified by the circumstances.
Each identity document was designed for a particular purpose, and that purpose is quite different from purposes of clubs that are trying to abuse them in this way.
In addition, copies of cards stored in insecure systems are a wonderful way to facilitate identity fraud and identity theft.
These actions by clubs are also probable breaches of privacy law. See below.
What You Can Do About It
People who are concerned about this practice should:
- tell the club the above (e.g. print this, and give them a copy)
- insist on a conversation with the manager on duty
- say ‘no’
- if they insist on the unreasonable behaviour as a condition of entry, say that you’ll publish the club’s name and bad behaviour on your Myspace page, Facebook entry, or blog. (Maybe you could pull out your mobile phone or PDA, and start doing it in front of their eyes)
- if the club still won’t let you in, explain that the next steps will be:
- complaints to the media and local Members of Parliament
- a formal complaint to the Privacy Commissioner and/or the government agency that issues the identification card they want to copy and/or the club licensing board
- if the club doesn’t back off, then make complaints to the above
- then, if the organisations you complain to do nothing, point out to relevant Ministers that the regulators are failing to defend privacy and enforce the law
Why This is Probably Against the Law
1. Privacy Law
The federal Privacy Act includes National Privacy Principles, and Principle 1.1 says “An organisation must not collect personal information unless the information is necessary for one or more of its functions or activities”.
None of this data is “necessary” for the club to perform its functions.
The Office of the Federal Privacy Commissioner puts out an Information Sheet.
Some other Privacy Commissioners are more active, e.g. “Alberta’s privacy commissioner has ordered a Calgary nightclub to stop scanning patrons’ driver’s licences” (20 February 2008).
2. Road Traffic Law
The law of the State or Territory that issues a driver’s licence may make it illegal for the club to demand a driver’s licence and/or to capture an image of it.
For example, the N.S.W. Road Transport (General) Act at s. 175 says “A person must not (knowing that he or she is not by law authorised to require its production) demand production by another person of that other persons driver licence”.
3. Licensing Laws
The law of the State or Territory in which the club is situated may regulate the circumstances under which the club is to require evidence from patrons, and may in the process also regulate the manner in which they do it. Even if they do not directly ban such actions, they may have a complaints process, which could be used in an endeavour to have the action banned.
For example, the ACT Liquor Act:
- at s. 153 specifies in relation to ‘proof of age’ only that a document of identification must be shown, not stored; and
- at s. 77 provides a means whereby complaints may be made by any person about “any matter arising out of the conduct of the affairs of a club at the licensed premises of the club”.