Public number directories not sourced from the IPND

72.220 The ACA has noted that Telstra’s directory arm, Sensis, has a database of information provided to it by other telecommunications providers under bilateral agreements. This enables Sensis to publish the White Pages based on this information, rather than from information sourced from the IPND.^[201] Consequently, Sensis is not subject to the IPND provisions under the Telecommunications Act.

72.221 It is unclear what rules apply to information collected by Sensis for inclusion in the White Pages. This information may be regulated under Part 13 of the Telecommunications Act and the Privacy Act. It could be argued, however, that it is not regulated under Part 13. Information collected from other carriage service providers subject to bilateral agreements is not information that comes to Sensis’s knowledge, or into its possession, in connection with its business as a carrier or carriage service provider.^[202] Further, it could be argued that neither Telstra nor Sensis is an ‘eligible number-database person’. Personal information collected for inclusion in the White Pages, therefore, may be regulated by the Privacy Act alone, which would allow Telstra to use that information for purposes such as direct marketing.

72.222 In DP 72, the ALRC noted that stakeholders were concerned that publishers of public number directories that do not use the IPND are not regulated adequately. ACMA stated that this was a key concern highlighted in submissions to the IPND Draft Standard.^[203] It was noted that the IPND Act amendments to the Telecommunications Act will not affect publishers of public number directories that do not use the IPND.^[204] A number of stakeholders suggested that directory publishers should be subject to the same regulatory standards, regardless of the source of the data.^[205]

72.223 It also was submitted that the current regulatory scheme results in an ‘uneven playing field’ and huge gaps in the protection of personal information.^[206] In particular, it was noted that there is no prohibition on directory publishers producing directories which are not sourced from the IPND and that are reverse-searchable.^[207] ACMA noted that it routinely receives complaints from the community about the existence of reverse search directories. ACMA is unable to take action to shut down a reverse search directory where the data comes from another source, or if it cannot establish that IPND customer data is the source used.^[208]

72.224 In DP 72, the ALRC asked whether directory products that are produced from data sources other than the IPND should be subject to the same rules under Part 13 of the Telecommunications Act as directory products which are produced from data sourced from the IPND.^[209]

Submissions and consultations

72.225 A number of stakeholders answered the question in the affirmative.^[210] For example, ACMA submitted that it is the community’s expectation that all telephone directories should be subject to the same rules, independent of the source of the data used for the directory.^[211] The DBCDE submitted that there are strong arguments on competition and privacy grounds that all directory publishers be regulated in the same manner, regardless of where or how they source their information.^[212] The Australian Finance Conference submitted that there appears to be no reason to distinguish the compliance requirements for producers of directories from either the IPND or another source, and that the compliance requirements should be uniform.^[213]

72.226 Optus submitted that the current arrangement gives Telstra an unfair competitive advantage in that it can direct market to everybody on its directory while others who only have access to the IPND are not able to. Optus also submitted that listed numbers are publicly available information and should be available to all who want to use it. Optus argued that directory producers should be allowed to use this information freely and apply current technology to it, including reverse search directories and predictive diallers. Optus also submitted, however, that if it is deemed necessary to retain the new IPND regulations, then they must apply equally to all directory producers including directory products.^[214]

72.227 Telstra, however, maintained that products that are produced from data sources other than the IPND should not be subject to the same rules as directory products produced from data sourced from the IPND.

The IPND should be the subject of special regulation because it is mandatory to contribute customer information to the IPND. That is, inclusion of customer information in the IPND is not optional. This should be distinguished from customer information, such as that used by Sensis, which is obtained by agreement directly from telecommunications companies and customers.^[215]

72.228 Telstra submitted that the fact that data is obtained by Sensis directly from telecommunications companies and customers does not mean that such data is not afforded protection or that there is any ‘gap’ in the protection of that data. It also noted that Telstra and Sensis are subject to regulatory requirements under Part 13 of the Telecommunications Act and the Privacy Act. Telstra submitted that the Telecommunications Act prohibits the production of a reverse search directory from data sourced under the Telecommunications Act without the consent or knowledge of the people concerned.

In Telstra’s view section 289 only permits disclosure of information if the person to whom that information relates consented to the disclosure or was reasonably likely to have been aware or made aware that information was usually disclosed or used in the circumstances concerned. Telstra believes that this exception would allow the production of a public number directory, but not extend to the production of a reverse search directory unless those concerned provided their consent or were reasonably likely to be aware that their information would be used in that way. ^[216]

72.229 Telstra also submitted that further regulation on directory producers such as Sensis will not prevent the illegal copying of directory information and the production of reverse search directories based on that data. Telstra also noted that neither Telstra nor Sensis ‘on sell’ White Pages directory data to any third parties.^[217]

ALRC’s view

72.230 The ALRC is concerned that two sets of rules apply to essentially the same information. The ALRC can see no reason why public directory producers should be subject to different compliance requirements based on the source of the information. While the ALRC agrees that one of the reasons why the IPND should be subject to special regulation is because it is mandatory to contribute customer information to the IPND, this does not justify information held on the White Pages being subject to less stringent protection. Further, while the ALRC has not heard that information held on the White Pages is being used inappropriately, the ALRC is concerned that information held on the database could be used for purposes unrelated to the provision of public directory services such as direct marketing, data cleansing and reverse search directories.

72.231 It is a principle of privacy laws that the use and disclosure of personal information for a purpose other than the primary purpose of collection (the secondary purpose) generally should be related to the primary purpose of collection. The use and disclosure of personal information held on the White Pages for a secondary purpose should be subject to the same restrictions imposed on information held on the IPND. Both the IPND and White Pages information are up-to-date, comprehensive databases containing the details of all listed (and in the case of the IPND, unlisted) telecommunications subscribers. Both databases justify special rules to ensure that information held on them is handled according to accepted privacy principles.

72.232 There also is a lack of certainty as to what rules currently regulate the use and disclosure of information contained in the White Pages. This uncertainty should be clarified. The Telecommunications Act should be amended to provide that directory products that are produced from data sources other than the IPND should be subject to the same rules under Part 13 of the Telecommunications Act as directory products which are produced from data sourced from the IPND.