Charging for unlisted numbers (Silent lines)
Australian Privacy Foundation Analysis and Submission to Privacy Commissioner, TIO, ACMA and ACCC
April 2006  

The Australian Privacy Foundation has been approached by Mr Steven Atkins, of North Sydney, who has complained to all four of the above organisations about the practice of Telstra in charging for an unlisted number (silent line).  Mr Atkins’ complaint has been dismissed by all four organisations, for various reasons.  The Foundation believes that these dismissals result from an incomplete analysis of the legal position, an in particular a failure to consider the application of National Privacy Principle (NPP) 8.  We are making this submission with Mr Atkins’ permission to pursue the issue and to refer to his correspondence where appropriate.

Analysis

It is necessary to distinguish three separate roles that Telstra plays in relation to silent numbers.

1. Telstra’s role as a carriage service provider (CSP) (in which role it is just one of a number of CSPs).  When allocating numbers to fixed line customers, all CSPs offer customers the option of an unlisted number (silent line). Most complaints about charging for silent lines (unlisted numbers) relate to Telstra, simply because Telstra is the dominant supplier of fixed line services.  The same issue does not arise for mobile services (offered by several CSPs), as for these services, unlisted is the ‘default’ option – the CSPs ask new customers if they wish their number to be listed in directories, and make no charge if they choose this option.

2. Telstra’s role as the contracted Integrated Public Number database (IPND) manager, under which, as a separate operation, it receives public numbers from all other CSPs, and compiles and maintains the IPND.  This database includes both fixed line and mobile numbers, and includes silent line numbers, with these being ‘flagged’ as such for exclusion from certain products (e.g. data supplied to directory producers) but not others (e.g. data supplied to emergency services).

3. Telstra’s role as a directory producer through its wholly owned subsidiary Sensis (in which role it is again just one of a number of providers).  However, unlike other directory producers, who use output from the IPND to compile their products, Sensis compiles the White Pages (print and electronic) from data supplied directly by Telstra and other CSPs (we understand by commercial arrangement rather than through the formal information transfer required for the IPND).  Telstra also has obligations arising from a licence condition (not applying to other directory producers) to publish and distribute, free of charge, the printed White Pages directory containing numbers allocated by all CSPs . 

Telstra’s policy of charging for a silent line (unlisted number) is in its capacity as a carriage service provider (role 1).   There is no suggestion that it is offering the choice, and charging, in its capacity as a directory producer (role 3), and in its capacity as the IPND Manager (role 2) it has no direct relationship with customers/subscribers.

Australian Communications and Media Authority (ACMA) position

ACMA take the view that because the telecommunications legislation does not prohibit any telecommunications service provider from charging a fee for the provision of a silent line, the decision to charge is a policy matter for Telstra, and therefore outside the jurisdiction of ACMA.

We submit that ACMA should reconsider its position in light of our analysis, which suggests that Telstra’s charging for silent lines directly undermines a key intent of the regulatory framework, which is to provide for the option of silent lines and the protection of associated information.

Australian Competition and Consumer Commission (ACCC) position

ACCC, having enquired into Telstra’s charging policy, takes the position that the matter is outside the ACCC’s Trade Practices Act 1974 jurisdiction.  However, ACCC’s enquiries did usefully elicit the justification from Telstra that its charge for silent lines is based on the general indirect costs (e.g. provision of directory assistance services when telephone numbers are not listed), monitoring security of silent numbers, and ensuring customers are aware of the implications of listing and unlisting.  

In our view, all these costs are inherent in the existence of the statutory right to have an unlisted number protected (and implicitly to have an unlisted number in the first place) and should not be passed on to the customer without an express authority to do so – otherwise the charge amounts to a barrier to the exercise of a right.  We also take this issue up later in relation to compliance with National Privacy Principle 8.

We submit that ACCC should reconsider its position in light of our analysis, which suggests that Telstra’s charging for silent lines directly undermines a key intent of the regulatory framework, which is to provide for the option of silent lines and the protection of associated information.

Telecommunications Industry Ombudsman (TIO) position 

The TIO says that Telstra are under a legal obligation to produce and maintain the IPND, including all allocated landline numbers, that implementing the opt-out for unlisted numbers requires manual intervention, and that the decision by Telstra to charge for this manual intervention is a commercial decision outside the TIO’s terms of reference.   

This position confuses roles 1 & 2.  But even if the TIO position is confined, as it should be, to Telstra’s role as a CSP (role 1), its conclusion is arguably incorrect.

As argued above, Telstra as a CSP is under an implied statutory obligation to offer ‘unlisted’ numbers, and an express statutory obligation (under both the Telecommunications and Privacy Acts) to take the appropriate steps to protect them (including, expressly under the TA, excluding them from any public directories) and to ‘flag’ them as unlisted when forwarding them to the IPND manager (also expressly under the Telecommunications Act)..

Any ‘manual’ intervention involved (the process may well be largely automated?) is not an action pursuant to a customer’s choice of an extra service – it is pursuant to their legal right to have an unlisted number protected.  As such, it is not a commercial practice, and should not therefore be outside the TIO jurisdiction.  

If Telstra, when allocating numbers, simply offered the unlisted choice but did not charge, but instead tried to do so in its role as a directory producer (i.e. “pay this charge or we will list you in the White pages”) it would rightly be seen as a ‘protection racket’ – charging individuals for gaining the benefit of a legal right.  Why is the imposition of a charge at the point of allocating the number not seen in the same way?

The TIO should in any case be mindful of the argument (set out below) that charging for silent lines is a breach of NPP8 (anonymity).  While the TIO constitution is somewhat outdated – referring to the IPPs of the Privacy Act rather than the NPPs, in practice the TIO has been applying the NPP standards since 2001. 

We submit that the TIO should reconsider its position in light of our analysis, which suggests that Telstra’s charging for silent lines breaches NPP 8, and directly undermines a key intent of the regulatory framework, which is to provide for the option of silent lines and the protection of associated information.

Given the involvement of the OFPC in the initial complaints, and the overlapping jurisdictions, it may be sensible for TIO and the OFPC to form a joint view, and also to consult with ACMA and ACCC.

Office of the Federal Privacy Commissioner (OFPC) position

The OFPC has replied in detail to a complaint about silent line charging.  The replies address the issue in terms of compliance with NPPs 1 and 2, which deal respectively with collection and with use of personal information.  The replies conclude, correctly in our view, that the practice of charging for unlisted numbers does not breach either of these two principles.  However, while the second letter mentions an OFPC submission (on the IPND) which questions whether it is appropriate for individuals to be charged for a silent number, no mention is made of the potential relevance of NPP 8.

Silent lines and NPP 8

Compliance with the NPPs is a jurisdiction of both the Privacy Commissioner AND the TIO (while there is no formal agreement about how this works in practice, the two offices maintain liaison).

NPP 8 states:

“Wherever it is lawful and practicable, individuals must have the option of not identifying themselves when entering transactions with an organisation.”

There is as yet no case law on the meaning of this principle or its application in practice.  OFPC Guidelines to the NPPs state:

“Unless there is a good practical or legal reason to require identification, organisations must give people the option to operate anonymously”.

The Victorian Privacy Commissioner, in his Guidelines to the identical principle 8 in the Information Privacy Act 2000, offers more detailed advice.  This includes the statement:

‘ … “Transactions” should be interpreted broadly to include the interactions between the individual and the organisation, whether or not they involve an exchange in a commercial sense.’

We argue, with the support of the OVPC Guideline, that compliance with NPP 8 is not a matter of a single choice – can the organisation deal with the individual without identifying them?  It is a much more nuanced principle that requires consideration of an individual’s interest in anonymity at various stages of interaction.

In the context of silent lines, we submit that NPP 8 supports the statutory right to an unlisted number, and provides an enforceable way of implementing that right.  Clearly a customer of a telecommunications provider cannot remain anonymous from that provider.  Apart from any issue of practicability (billing etc), the Telecommunications Act requires the identification of customers.

But by requesting a silent line, an individual expresses a desire to remain ‘anonymous’ in relation to third parties who are consulting directories or directory assistance services.  This desire is backed up by a statutory right under the Telecommunications Act.  

By imposing a charge for the exercise of that right, Telstra is in effect placing a barrier in the way of the individual’s desire for selective anonymity.  It is in effect charging for compliance with NPP 8.  

We contend that it is unlawful for organisations subject to the Privacy Act to charge individuals for compliance except where this is expressly provided for (e.g. in relation to access principle NPP 6).

It is irrelevant, in our view, that the Telecommunications Act 1997 and licence conditions are silent on the question of charging for silent lines.  It should be assumed that a telecommunications provider cannot charge for the exercise of a statutory right, without express statutory authorisation.

In the context of compliance with the NPPs, analogous situations would be if an organisation tried to impose a charge for not disclosing an individual’s personal information on the pretext that failure to pay constituted implied consent to the disclosure.  Alternatively, if an organisation tried to charge for (reasonable) security measures in relation to personal information, and for individuals who chose not to pay only instituted less-than-reasonable security measures. We would suggest that these examples would clearly breach NPP 2 and NPP 4 respectively.   Charging an individual to exercise a degree of anonymity would similarly breach NPP 8.

We submit that OFPC should reconsider its position in light of our analysis, which suggests that Telstra’s charging for silent lines breaches NPP 8, and directly undermines a key intent of the regulatory framework, which is to provide for the option of silent lines and the protection of associated information.

There seems little point in trying to deal with this issue by means of a continuing complaint or even a representative complaint, as Telstra will clearly be unwilling to concede that it is breaching NPP 8 and it is also clear that no compromise position can be negotiated.  In our view, the situation requires the Privacy Commissioner to make a robust decision about the meaning of NPP 8 and its application to charges for silent lines.  

Given the involvement of the TIO in the initial complaint, and the overlapping jurisdictions, it may be sensible for OFPC and the TIO to form a joint view, and also to consult with ACMA and ACCC.                                                                       

The APF contact for further discussion is Nigel Waters
(02) 4981 0828  nigelwaters@iprimus.com.au 

This analysis has been copied to Telstra’s Chief Privacy Officer