The terms of reference for the inquiry are:
The feasibility of a prohibition on the charging of fees for an unlisted (silent) number service, with particular reference to:
(a) recommendation no. 72.17 contained in report no. 108 of the Australian Law Reform Commission on Australian privacy law and practice;
(b) whether the payment of a fee unduly inhibits the privacy of telephone subscribers;
(c) the likely economic, social and public interest impact for consumers and businesses, carriage service providers and the White Pages directory producer, if the charging of fees for unlisted (silent) number services was prohibited;
(d) the implications of such prohibition for the efficacy of the national public number directory; and
The ALRC's recommendation no. 72.17 in its 2008 For Your Information: Australian Privacy Law and Practice report was(e) any other relevant matters.
The Telecommunications Act 1997 (Cth) should be amended to prohibit the charging of a fee for an unlisted (silent) number on a public number directory.The ALRC commented that
72.236 The Telecommunications Act provides that an unlisted number cannot be disclosed except in specified contexts.
The Act is silent on whether a fee can be charged for an unlisted number. The Carrier Licence Conditions (Telstra Corporation Limited) Declaration defines an unlisted number as a public number that is one of the following kinds: a mobile number, unless the customer and the carriage service provider that provides the mobile service to the customer agree that the number will be listed; a geographic number that the customer and the carriage service provider that provides services for originating or terminating carriage services to the customer agree will not be included in the directory; the number of a public payphone; or a number that, when dialled, gives access to a private telephone exchange extension that the customer has requested not be included in the directory.
72.237 Article 12.2 of the EU Directive Concerning the Processing of Personal Data and the Protection of Privacy in the Electronic Communications Sector provides that a fee should not be charged for an unlisted number: Member States shall ensure that subscribers are given the opportunity to determine whether their personal data are included in a public directory, and if so, which, to the extent that such data are relevant for the purpose of the directory as determined by the provider of the directory, and to verify, correct or withdraw such data. Not being included in a public subscriber directory, verifying, correcting or withdrawing personal data from it shall be free of charge.
72.238 ACMA has noted that some stakeholders making submissions to it in relation to its Draft IPND Standard suggested that the imposition of a fee may impact on a consumer’s decision to choose to have an unlisted number. Consumers have queried whether such a fee contravenes the Privacy Act, and asked why a fee is imposed for an unlisted fixed line number, but not for mobile services.
72.239 In its submission to ACMA on the Draft IPND Standard, the OPC noted that: One of the stated objects of the draft standard (clause 5(d)) is that an individual ‘may choose whether his or her customer data is to be included in a public number directory’. A relevant question then is whether it is appropriate for individuals to be expected to pay for the right to make privacy choices. Charging a fee for a silent number or to make other choices may limit some individuals’ ability to make such choices freely, and thereby hamper their ability to control their own personal information. The effect that free silent listings may have on the number of individuals that appear in directories of public numbers may also need to be considered.
72.240 In DP 72, the ALRC expressed the view that, while charging for an unlisted number may not be a breach of NPP 8, it reduces an individual’s ability to control the use or disclosure of their personal information. Many people request an unlisted number because of safety concerns or because they do not wish to be contacted by telemarketers.
The ALRC therefore proposed that the Telecommunications Act be amended to prohibit the charging of a fee for an unlisted (silent) number on a public number directory.
Submissions and consultations
72.241 A number of stakeholders supported this proposal.
For example, the OPC submitted that: The Office receives a number of enquiries and some complaints from members of the public who object to the payment of a fee to exercise their choice of being unlisted in the public telephone directory. The Office takes the view that charging a fee for a silent number may affect individuals’ ability to make such choices freely, and thereby hamper their ability to control their own personal information. This may be particularly the case in regard to individuals on low or fixed incomes.
72.242 The Federation of Community Legal Centres (Vic) supported the proposal, and submitted that such an amendment would be consistent with the recognition in the Privacy Act that privacy is a human right and that persons asserting such a right should be able to do so with as little effort or inconvenience as possible. In particular, the proposed amendment recognises the needs of our clients who are experiencing or have experienced family violence, and who need to ensure, in as simple and effective a manner as possible, that the perpetrator is unable to contact them by telephone.
72.243 ACMA submitted that it understands that consumer expectations of the benefits of having an unlisted number go beyond the mere omission of the number from public number directories. For example, having an unlisted number has meant that a consumer’s CND is blocked and that their details cannot be disclosed from the IPND for publication in a public number directory or for use by a researcher in a research project. ACMA also suggested that individuals may not be aware of what exactly they are paying for by having an unlisted number. Further, it submitted that it is unclear what administrative costs the fee is intended to cover—particularly given there is no such fee for mobile phone services.
72.244 The DBCDE submitted that the proposal will have commercial implications for the White Pages and other telephone directories. Not charging for an unlisted number might result in a considerable increase in the proportion of residential telephone service users having unlisted numbers. If this were to occur, the number of entries in the printed and electronic White Pages and other telephone directories, and therefore their usefulness, would be reduced. It is possible that telephone directories could eventually become redundant, although this does not appear to have been the case in the European experience.
72.245 Telstra strongly objected to the proposal for a number of reasons. First, it noted that the ALRC had referred to the EU Directive Concerning the Processing of Personal Data and the Protection of Privacy in the Electronic Communications Sector, but noted that the ALRC had not considered other comparable jurisdictions, such as the United States, Canada and Singapore, where customers are charged for unlisted numbers.
72.246 Telstra noted that while some individuals may want a silent line to reduce their telemarketing calls, the ALRC should acknowledge the impact of the introduction of the Do Not Call Register, existing protections against telemarketing under the Telecommunications Act and the Privacy Act, and that the White Pages Online site is protected from unauthorised downloads of data.
72.247 It was submitted that the Australian telecommunications market is fiercely competitive, and that consumers can choose a telecommunications service provider that does not charge for the service. Telstra submitted that there is no market failure which leads to a need for the price to be regulated or the fee removed.
72.248 Telstra submitted that the ALRC did not present any evidence to suggest that individuals’ safety is compromised by the charge for an unlisted number. It noted that a silent line is one aspect of an individual’s approach to the management of their security. In the period since July 2005, Telstra reported that it has received only three complaints with respect to the existence of a charge for silent lines. It submitted that this supports the view that customers see the value in the service and do not believe that the charge is too high or compromises safety.
72.249 Telstra noted that its unlisted number service is a commercial service offered by a privately-owned company, and that its investors expect a competitive return on their investment. It observed that it carries a consequent commercial, reputational and financial risk and incurs costs to provide and maintain the service. These costs include those of: employing personnel to enter and process data, maintaining information technology systems, and responding to customer requests; updating the database to avoid unauthorised disclosure; information technology and systems; and undertaking sophisticated verification procedures to reduce the mistaken release of silent line information.
72.250 It was submitted that the current fee is nominal. The fee has been maintained at a nominal GST-exclusive price of $2.66 per month for more than 12 years. Telstra has not increased this fee.
72.251 Telstra argued that the fee is targeted correctly to the users of the service, and that it is unreasonable that its customers or shareholders should be asked to subsidise the services for consumers who wish to take additional steps to protect their personal security. It argued that, if one of the arguments in favour of this proposal is to meet the needs of the financially disadvantaged, this is a matter for a government subsidy and not an appropriate basis on which to recommend that charging of a fee for an unlisted number on a public number directory should be prohibited.
72.252 Telstra’s carrier licence requires it to publish a public number print directory. It argued that the comprehensiveness of the White Pages directory is important to enable Telstra to comply with other statutory and regulatory obligations, such as the obligation to provide directory assistance services. As a result, its systems and processes are geared toward including a customer’s details in the White Pages directory and related products and services, to maximise the comprehensiveness of the White Pages directory.
72.253 Telstra also argued that the issue of charging for an unlisted number has been considered and rejected by appropriate regulatory bodies, including ACMA. It also submitted that the proposal ignores specific elements of the Terms of Reference for the current Inquiry, particularly the requirement that the ALRC consider ‘the desirability of minimising the regulatory burden on business in this area’.
ALRC’s view
72.254 As has been noted throughout this Report, privacy is recognised internationally as a human right. This also is reflected in the Preamble to the Privacy Act, which makes reference to human rights, and specifically to those guaranteed in the International Covenant on Civil and Political Rights.
72.255 The Preamble to the Privacy Act also refers to Australia’s obligations at international law ‘to give effect to the right of persons not to be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence’ and to protect ‘privacy and individual liberties’. While charging for an unlisted number is not a breach of NPP 8, it is a financial impediment to accessing a service that will help to protect privacy. A charge reduces an individual’s ability to control the use or disclosure of their personal information. This is particularly an issue for individuals on fixed or low incomes.
While the the EU Directive Concerning the Processing of Personal Data and the Protection of Privacy in the Electronic Communications Sector provides that a fee should not be charged for an unlisted number, other jurisdictions do not prohibit the charging of fee. This is not, however, an argument against prohibiting the charging of a fee for an unlisted number. In DP 72, the ALRC cited the EU as an example of a jurisdiction that has chosen to prohibit the charging of a fee for an unlisted number, not in support of such a prohibition. The ALRC has not been able to find any information to suggest that the EU Directive has unreasonably disadvantaged European telecommunications service providers or has resulted in telephone directories becoming redundant.
The ALRC also acknowledges Telstra’s argument that the prohibition on charging a fee would prevent it from satisfying its licence conditions. A ban on a fee for unlisted numbers may result in less people choosing to be included in a public telephone directory. While the result of this recommendation may be that public number directories are less comprehensive, it would not prevent Telstra providing directory assistance services or producing a White Pages directory.
The ALRC notes Telstra’s arguments that it has received only three complaints with respect to the existence of a charge for silent lines, and that Telstra cites this as supporting the view that customers don’t believe that the charge is unreasonable or compromises safety. The OPC submitted, however, that it receives a number of enquiries and some complaints from members of the public who object to the payment of a fee to exercise their choice of being unlisted in the public telephone directory. The ALRC also is concerned about the needs of those who have experienced family violence, and who need to ensure that the perpetrator is unable to contact them. This is not a privacy protection for which an individual in such a situation should be charged.
