Business needs of other carriers or service providers

72.119 Sections 291 and 302 of the Telecommunications Act provide that the primary and secondary use or disclosure by a person of information is permitted if: it is made by or on behalf of a carrier or carriage service provider for the purposes of facilitating another carrier or service provider providing a service to the person who is the subject of the information or document; and that person has been or is a customer of the disclosing carrier or carriage service provider, or the other carrier or service provider.

72.120 The provision also contains rules that allow the use or disclosure of information or a document about customers for a purpose connected with a carriage service intermediary arranging the supply of a carriage service by a carriage service provider to a third person.^[100]

72.121 This provision is designed to allow a use and disclosure that is ‘triggered’ by some action or request by a customer such as dialling an access code to make use of another carrier. It does not provide for uses and disclosures of subscriber information for activities such as marketing by other carriers or service providers.^[101]

72.122 In DP 72, the ALRC noted that stakeholders had raised a number of concerns relating to this exception.^[102] These concerns related to the scope of the exception and whether it permitted the use and disclosure of silent numbers, calling number display or location-based information.^[103] Concerns were also raised in submissions that telecommunications providers have interpreted s 291 and other provisions under Part 13 to allow the use or disclosure of credit reporting information and credit worthiness information.^[104]

72.123 The ALRC expressed the preliminary view that the scope of ss 291 and 302 should be clarified. The ALRC asked whether s 291 and s 302 are resulting in the inappropriate use or disclosure of personal information; and if so, how the exception should be confined. The ALRC also asked whether the exception should be amended to provide that silent and other blocked calling numbers can be used or disclosed only with a person’s consent.^[105]

72.124 The ALRC outlined two options for reform. The first would be to amend ss 291 and 302 to confine the exception to certain duties of an employee or contractor, including connecting and disconnecting telecommunications services; and limit expressly the circumstances when silent and other blocked calling numbers could be used or disclosed. A second option would be to subject the exception to a requirement that a use and disclosure by a person made for the purpose of performing that person’s duties must be related to the primary purpose of collection.

Submissions and consultations

72.125 Some stakeholders submitted that the exception is being abused, and should be confined.^[106] The Australian Privacy Foundation submitted that the exception should be amended to require free and informed consent, unless a use or disclosure actually is necessary for the particular service being provided.^[107]

72.126 One stakeholder submitted that ss 291 and 302 should be amended to: confine the exception to certain duties of an employee or contractor where it is not practical to obtain consent; minimise the need for amendments when new privacy-invasive technologies are developed; and provide that a secondary use or disclosure is permitted only when it is for the same purpose for which the original telecommunications service provider disclosed the information.^[108]

72.127 The OPC supported confining the exceptions to: the duties of an employee or contractor, including connecting and disconnecting telecommunications services; prohibiting the use or disclosure of credit reports or credit worthiness information; and requiring that silent and blocked telephone numbers can be used or disclosed only with the consent of the individual.^[109]

72.128 Telstra and Optus submitted that the exception under ss 291 and 302 has not resulted in the inappropriate use and disclosure of information.^[110] These stakeholders emphasised that the exception is critical to the efficient and effective running of telecommunications in Australia.^[111]

72.129 Optus noted that the telecommunications industry relies upon a large number of inter-carrier transfer processes, for example, when a customer wishes to change their mobile provider but wants to keep their mobile number. Optus submitted that, without ss 291 and 302, this process would be undermined. It also submitted that any limitation on the exception under ss 291 and 302 could be used by competitors as a reason to prevent necessary inter-carrier processes that promote strong competitive outcomes in the telecommunications industry.^[112]

72.130 Telstra stated that confining the exception is contrary to the policy behind telecommunications deregulation and could have an adverse impact on the provision of telecommunications services to customers. Telstra noted that a key factor in ensuring seamless interconnection between carriers and carriage service providers has been the disclosure of customer information to enable them to carry and complete calls, form customer relationships and bill customers. Telstra noted some examples of when information needs to be exchanged between carriers or carriage service providers.

• Where customer A on a carrier’s network calls customer B who is on another carrier’s network, in order for the call to be put through and completed, and for billing purposes between carriers, the number called plus the calling line identification (CLI) is passed between carriers (together with the customer A’s nomination on whether the CLI should be displayed to customer B).

• Where a customer of a carrier preselects another carrier as its long distance carrier. The first carrier would need to provide the second with the customer’s customer. This would be the case whether or not the customer has a silent line.

• Where a customer of carrier A seeks to move to carrier B for telecommunication services, the customer contacts carrier B to request a transfer of services. Carrier B then contacts carrier A to request the number be ported to carrier A. There are various number portability codes which govern this process. For this process to work seamlessly so that the customer continues to have a working service during this time, certain customer information has to be passed between those carriers.

72.131 Telstra submitted that the inability to continue to work in this manner would have a direct impact on the ability of telecommunications service providers to provide services to customers, and cause delays in the provision of services.^[113]

72.132 ACMA and the DBCDE also raised concerns about confining the exception. The DBCDE noted that the exception is critical to maintaining ‘any-to-any connectivity’ arrangements in telecommunications networks.^[114] ACMA submitted that amendment of ss 291 and 302 may result in additional costs, and may narrow the range of services available to all consumers, not only to those who prefer to have their number blocked.^[115]

ALRC’s view

72.133 The ALRC does not recommend that the exception under ss 291 and 302 of the Telecommunications Act should be amended to confine the scope of the exception. The ALRC considered a number of options to confine the exception, but has concluded that these options would be either unworkable in a complex and changing telecommunications environment, or would have unforeseen consequences. The ALRC is concerned that confining the exception may prevent the carriage of communications and the seamless interconnection between carriers and carriage service providers.

72.134 The ALRC acknowledges stakeholder concerns that the exception under ss 291 and 302 may be used to disclose unlisted numbers and other blocked calling numbers. This issue is discussed below.