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​My records have been compromised – What recourse do I have?

In December 2015, the personal data of 31,150 (mostly past) Optus customers was posted on short-term job website Freelancer.com in what was a major breach of their privacy.

What happens in these instances – is this going to be your payday or will you be disappointed? The question is where has this legal battle landed and will I be able to be happy with the end result?

Establish that you were injured

The key is to establish that you were actually injured by the breach.

We all are aware that the US is a very litigious country, but when 2.6 payment million records were breached and a class action was taken (Michael’s Case) The judge explained that plaintiffs must be able to show they “personally have been injured, not that injury has been suffered by other, unidentified members of the class.”

And while there was no doubt that the hack occurred, there was no direct evidence that the hackers actually obtained any personally identifiable information (including names, addresses or personal identification numbers)

This is similar to the Adobe issue, where consumers’ payment card numbers and other personal information were allegedly exposed. But the plaintiffs agreed to the settlement after discovery apparently revealed no evidence that any data had actually been misused.

Based on the Target Case – you won’t get rich

We also all probably heard about the 40 million records that have been breached at Target. There were going to be two different parties effected – those who records were breached and secondly the bank card issuers who have then had to re-issue new cards to their customers.

The Target settlement called for Target USA to pay $10 million into a fund against which class members can make claims for compensation for certain out-of-pocket expenses. Also Target has to pay for administration and legal fee. In fact, the overall cost of the settlement to Target will be around $20 million - Based on that math, it is not financially attractive to be effected.

Read more: ​Re-used crypto keys expose millions of devices to attack

Meanwhile in the UK, there is the Data Protection Act, however to claim compensation under the act - has a high bar and you need to be able to demonstrate that the breach resulted in "damage, or damage and distress."

To claim for compensation there are no set guidelines and it is up to the judge. In effect, the judge will have to assess the extent of the breach and its effect on you.

Will you face a Future Injury?

Read more: US DoD: we’ll pay* you to ‘hack the Pentagon’

So these guys have my credit card details, surely I will face a future damage?

Unfortunately if precedents are followed and in particular: Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013)

“the mere risk of future identity theft was never an injury”

Not the silver lining ending that I suspect, one had hoped for. Having your personal details stolen by hackers and then the nervous energy of worrying about miscellaneous charges etc for the unforeseen future is not a pleasant outlook.

Unfortunately, going down the path of expecting legal recourse may also leave you feeling just as unhappy.

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Tags personal datasecurity riskdata breachFreelancer.combanking securityoptusData Protection Act​privacyCSO Australia

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