Chapter 2

Discussion of key issues

2.1        The committee heard from a number of witnesses who were concerned about the impact that charging a fee for an unlisted number may have on a person's right to privacy. A number of submitters referred to privacy as an international human right, something that is noted in the preamble to the Privacy Act 1988, and expressed the view that to the extent that charging a fee for an unlisted number interferes with a person's right to privacy, then it should be prohibited.[1]

2.2        In addition to privacy being an international human right, submitters informed the committee that a person may have a heightened need to safeguard their privacy, including people who feel threatened or are the victim of domestic violence and people whose occupation places them in a vulnerable position (for example: police officers, prison guards and domestic violence workers).[2]

2.3        Telstra informed the committee that as it has a regulatory obligation to maintain and publish an annual public directory—the White Pages—it should be entitled to charge a fee to cover the administrative cost of processing changes to a person's data.[3] Furthermore, Telstra submitted that the minimal fee it charges for an unlisted number does not unduly inhibit the privacy of telephone subscribers.[4]

A right to privacy

2.4        The Australian Privacy Foundation submitted to the committee that it believes that the inquiry should not be focused on the 'feasibility' of a prohibition on charging fees for an unlisted number; rather it is the 'desirability', and the balance of public interest that needs to be assessed. [5] The organisation stated that:

...there is no public interest in continuing to allow carriage service providers (CSPs) to charge for silent lines (unlisted numbers)—only the private commercial interest of some of the CSPs... Against this should be set a range of public interests in prohibiting the charging of a fee—primarily the privacy interests of all CSP consumers, which is not merely a collection of private interests, but also a wider public interest in maintaining both the letter and the spirit of the Privacy Act.[6]

2.5        The Office of the Australian Information Commissioner (OAIC) advised that privacy is a basic human right that should be made available equally to everybody.

...the OAIC is of the view that privacy is a fundamental human right which should apply to all people regardless of financial means. The charging of a fee for a silent number may limit an individual's ability to freely exercise their choice of being unlisted in the public telephone directory and thereby hamper their ability to control their own personal information.[7]

2.6        The Women's Legal Services NSW similarly argued that a right to privacy is an indelible human right that is encroached upon with the charging of a fee.[8] The organisation stated:

Charging a fee for silent numbers represents a financial obstacle to accessing a service which will help you protect your personal privacy. Charging a fee for a private number impinges on the ability of individuals to control the use and dissemination of their personal information.[9]

2.7        The Consumer Credit Legal Centre NSW submitted that 'privacy is a basic right and consumers should be able to control the use or disclosure of their personal information with as little effort or inconvenience as possible'.[10]

2.8        As part of its inquiry into the protection of people's privacy, the Australian Law Reform Commission (ALRC) investigated the effect of charging a fee for an unlisted number on a person's ability to maintain their privacy.[11] The ALRC noted that while charging for an unlisted number is not a breach of the National Privacy Policy:

...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.[12]

2.9        The ALRC therefore recommended that 'the Telecommunications Act 1997 should be amended to prohibit the charging of a fee for an unlisted (silent) number on a public number directory'.[13] This recommendation was supported by a number of submitters.[14]

2.10      Telstra however argued that the charging of fees for unlisted number service does not unduly inhibit the privacy of telephone subscribers, and 'is consistent with the policy driver behind Telstra's White Pages carrier licence condition which serves the public benefit of a comprehensive national public number directory'.[15]

2.11      Telstra stated that it:

...does not believe the payment of a fee unduly inhibits the privacy of telephone subscribers. The fact that a customer is listed in a directory is a product of Telstra's White Pages [carrier licence condition] and is not a breach of privacy under Australian law. Directory unlisting is an enhancement of personal information protection that is available for a modest fee in the same manner as similar services including post office boxes.[16]

2.12      Furthermore, Telstra argued that:

It may be narrowly accurate to say that charging for a service is an impediment to accessing a service, but it does not follow that a charge should therefore be prohibited, even where the service has the effect of enhancing the customer's privacy. A modest charge that is reasonable on other grounds does not constitute an insurmountable or even an unreasonable barrier to access. For most people directory unlisting is not critically important and not prohibitively expensive.

Telstra agrees that customers who have experienced family violence and need to ensure the perpetrator is unable to contact them should not need to pay for directory unlisting...[17]

Privacy for personal safety

2.13      Organisations with expertise in supporting victims of domestic or family violence were concerned about the impact that the charging of a fee might have on people experiencing this violence, and submitted that the fee may be a factor which reduces their ability to conceal their location, or be free from contact by the perpetrator of this violence.

2.14      The Law Institute of Victoria told the committee that:

It is the experience of our members that clients who are suffering from or have suffered family violence often request an unlisted number from their telecommunications providers due to grave concerns they have regarding the care, safety and wellbeing of their children and families.[18]

2.15      Community Legal Centres NSW advised that 'silent numbers are most essential for the physical and psychological safety of people who have previously been victims of violence or who have been threatened or stalked'.[19] They also noted that employees of these services may also be threatened or put at risk by assisting the victims of violence.[20]

2.16      The Women's Legal Services NSW explained that they regularly advise victims of domestic violence to change their phone numbers or to obtain silent numbers.[21]

2.17      The St Vincent de Paul Society told the committee that in their experience, many of the people that they provide support to have problems with ex-partners harassing them.

In our opinion, the constant harassment faced by some of the people we help adds significantly to their stress, and further damages their chances of escaping poverty.

The economic, social, and public interest impact for consumers may therefore be bigger than expected. By making privacy the default option, not charging for unlisted numbers will start to offer a real option to those living near the poverty line as to whether they wish their number to be disclosed or not. Removing fees, and making privacy the default option, will really empower those we help to control who has access to them, and how – something most Australians are able to take for granted.[22]

2.18      Submitters also argued that people whose occupation exposes them to unpredictable and dangerous individuals often wish to protect their privacy by having an unlisted number.[23] The Women's Legal Services NSW informed the committee that many domestic violence workers are advised when they start work in the field to remove themselves from phone directories and the electoral roll as a safety precaution.[24]

Fee charging

2.19      It was raised by a number of submitters that often people who request an unlisted number in the interests of protecting their personal safety are the least able to afford the charges.[25]

2.20      The Women's Legal Centre (ACT and Region) advised the committee that over half of their clients experience domestic violence, and the majority of all clients rely on Centrelink payments to survive. Many are also supporting children and, according to the Centre, it is not hard to see that paying a monthly fee to 'ensure their silent number is not published is an added burden that they are unable to afford'.[26]

2.21      The Hunter Community Legal Centre observed that 'although the fee itself may be considered to be minimal, it can still be unaffordable for those persons who are vulnerable and disadvantaged'.[27] According to the Centre:

Removal of the monthly fee will allow vulnerable and disadvantaged persons to protect their privacy and ensure that they can maintain some level of control over what information is available in the public domain.[28]

2.22      Mr Timothy Pilgrim similarly advised the committee that the fee should be prohibited on the basis that it may:

...limit an individual's ability to freely exercise their choice of being unlisted in the public telephone directory, and thereby hamper their ability to control their own personal information. This is especially problematic for individuals on low or fixed incomes.[29]

2.23      The St Vincent de Paul Society advised the committee that for many people, there may be a lot of complexity around being able to negotiate the process of asking for a number to be unlisted, as well as having the ability to pay for it, noting that people have to be:

...educated about how the number is being used, researching how to change this, engaging in a complex administrative procedure, and then paying monthly fees for as long as one wants the basic right to privacy protected. This...seems even more absurd in the case of those close to the poverty line, who may not have access to resources such as the internet, and may already be juggling multiple low-paying jobs as well as family commitments. Negotiating the complexities of obtaining a private number will also be particularly difficult for those not confident with technology, such as older Australians, or for those who struggle with English, including recent migrants and those with language difficulties.[30]

Telstra to waive Silent Line fee for victims of domestic abuse

2.24      In its submission Telstra announced that it would 'introduce a formal program to waive the fee for customers facing a demonstrated security threat in recognition of the elevated importance of the service for those customers'.[31] Telstra explained that:

This fee exemption removes the only potential barrier posed by the fee to the effective management of personal information in a situation where that management is critical to an individual's personal safety. Silent Line is a discretionary service for most fixed line customers, but Telstra recognises it is not discretionary for customers facing a security threat.[32]

2.25      In the past Telstra has frequently waived the Silent Line fee for customers in distress and the new company policy will formalise and publicise that policy.[33] For customers who face a security threat but do not meet the eligibility criteria for Silent Line fee exemption, customer service agents will be authorised to respond to an applicant's individual circumstances and apply the fee exemption where appropriate.[34] Telstra will also provide its fee exemption to domestic violence workers facing threats as 'the community organisations they work for are highly resource constrained'.[35]

2.26      While a number of submitters congratulated Telstra for waiving the fee for silent line customers whose personal safety is at risk, several submitters pointed out that this waiver is dependent on the individual having a valid protection order in place, or being a client of a community organisation providing services to people who are facing a security threat.[36] The committee was advised that for many women experiencing domestic violence, escaping the violence was their priority, and that seeking a protection order was not always an option. In addition, a protection order specified the location that the person subject to the order has to avoid, thereby alerting the perpetrator in many instances to the location of the victim. For this reason many victims do not use protection orders.[37]

2.27      The Cairns Community Legal Centre raises additional issues with the criteria for the waiver:

...the waiver does not recognise people who may feel that they are at risk but do not have the courage or access to resources to obtain a protection order, nor does it recognise people who feel that they are facing a security threat and are in the process of obtaining a protection order.

Likewise, when a protection order expires, would the person then be charged a fee to have their silent number remain silent?[38]

2.28      Community Legal Centres NSW is concerned that the criteria creates additional privacy concerns:

It is an invasion of privacy to require consumers to explain why they need or desire a silent number – in other words, why they chose to exercise their right to privacy. It is not reasonable, nor efficient, to expect consumers who face a security threat (for example, from an ex‐partner or from relatives) to provide documentation about this to a telephone company.[39]

2.29      The Australian Communications Consumer Action Network (ACCAN) also pointed out that customers of telecommunication companies that resell Telstra's Silent Line product will not be covered by the fee waiver initiative.[40] According to ACCAN:

A customer of...resellers who face a security threat will not be able to avail themselves of Telstra's proposed policy. This is a limitation of the policy which would be difficult to resolve. For a customer of a reseller to be granted the exemption, the reseller would need to (i) implement a policy similar to Telstra's proposal, which would be entirely at the discretion of the reseller, and (ii) provide the consumer's information, and the consumer's information, and the fact of their security-threatened status, to Telstra, which would raise further privacy concerns.[41]

2.30      In its supplementary submission to the committee, Telstra reiterated that:

For customers who face a security threat but do not meet the eligibility criteria for Telstra's Silent Line fee exemption, our customer service agents will be empowered to respond to applicants' individual circumstances and apply the fee exemption where appropriate.[42]

Implications for the national public number directory

2.31      It was agreed by submitters that there is a public benefit in having a free public number directory.[43] The Australian Communications and Media Authority (ACMA) provided the committee with the results of research it has undertaken into how consumers use directory assistance services and the White Pages and Yellow Pages.[44] According to their findings, the majority of Australians continue to keep a printed telephone directory at home and have used a telephone directory and/or directory assistance services in the last 12 months:

Nine in 10 (88 per cent) of all Australians have used either the hardcopy White Pages and/or the electronic White Pages and/or called Directory Assistance services to find a telephone number in the last 12 months.

The majority of Australians (86 per cent) keep at least one printed telephone directory at home, either the printed White Pages, Yellow Pages and/or a combined book with both.[45]

2.32      The results showed the people aged 65 years or older are much more likely to use a hardcopy of the White Pages than the electronic version.[46]

2.33      However their findings also indicated that people are using alternative sources to find telephone numbers and that advancements in technology have made it easier to store and retrieve information that was previously only available through a public directory.

The capacity of phones to store numbers and other contact details, and the ease of capturing a caller's details, have lessened the dependency on, and use of, written phone lists, telephone directories and directory services for many participants...

Many participants preferred to use online search facilities such as Google rather than the phone book or electronic directories as it was faster, provided more succinct information, and, if being used to find a local tradesperson, for example, provided a targeted list. [47]

2.34      ACMA believed that the idea that consumers should be able to choose to have their details published and be able to do so at no additional cost is, in principle, consistent with good consumer outcomes.[48] ACMA did not have a particular view on what changes would assist in meeting this outcome.[49]

2.35      Although ACCAN acknowledged the public benefit in having a free public number database, it argued that consumers should have a choice as to whether or not their information is published online.[50] Furthermore, ACCAN expressed concern at just how privacy intensive the White Pages can be:

It is possible to search for a surname, without specifying any initial, and the search can be made at the National, State, or suburban level. Alternative spellings of surnames are provided by the site. The live search results display street names and suburbs, and individual search results can be followed to find the user's phone number, street number, and location displayed on a map.

By comparison, the website of the Australian Electoral Commission allows visitors to check their enrolment status, but to do so the user must provide an exact match on surname, given name, street name, postcode and suburb, as well as a Captcha verification code, in order to display the results.[51]

2.36      ACCAN was also of the opinion that charging the Silent Line fee for administrative requirements is unjustified as many organisations factor these costs into the prices of its services.

...the Silent Line fee amounts to the charging of a special fee in order for Telstra to comply with what would, in other circumstances, be its customers' expectations of and rights to privacy. This is no more acceptable than would be a company charging its customers a fee to opt out of receiving unsolicited commercial emails on the grounds that the Spam Act 2003 introduces additional regulatory costs and commercial, reputational and financial risks.[52]

2.37      ACCAN suggested that data utilised in the White Pages be obtained from the IPND as is currently required of other public number directories.[53]

2.38      Vodafone submitted to the inquiry that the purpose of the White Pages in the past was to encourage the use of the Telstra network and for people to find each other for that purpose.[54] Vodafone argues that the reason the Silent Line fee continues to exist 'is because it is in Telstra's commercial interests to retain this revenue stream and to discourage and penalise customers who choose not to be listed in the White Pages products'.[55] In turn this allows Telstra to make more money on its other commercial offerings that make use of White Pages data.[56] Vodafone believes that technological changes to systems mean that there would be no extra work required to maintain privacy of Silent Line records.[57]

2.39      Optus similarly submitted that it believes that there should not be a fee for an unlisted number.[58] Indeed, Optus informed the committee that it does not charge its customers for silent numbers.[59] Optus also argued that:

Given mobile numbers are unlisted by default—with no charge to the customer, we believe the requirement for fixed line customers to pay for an unlisted number is out dated, and not reflective of the current telecommunications environment and the increasing use of mobile phones.[60]

2.40      Mr Bruce Arnold suggested that if there is a cost associated with providing an unlisted number, then this is a one-off fee, and not one that should be ongoing.[61] Mr Arnold also acknowledged that prohibiting a fee does not prevent people from disclosing their number publicly in other ways–on a business card, website or by other means.[62]

Telstra's response

2.41      Telstra informed the committee that its White Pages Carrier Licence Condition (CLC) embodies the government's view that a comprehensive national directory is a necessary public good.[63] According to Telstra:

The purpose of a national public number directory is to publish the basic contact information of all fixed line telephone subscribers in order to facilitate connections between them. Users consult the directory when they know there is a good chance of finding the fixed number listing they need. Encouraging customers to remove themselves from the directory without good reason via a prohibition of the current modest fee will detract from this purpose in proportion to the percentage of unlisted numbers.[64]

2.42      Telstra argued that as the publication of a free national telephone directory remains part of Telstra's Carrier Licence Conditions, it is evidence enough that the government still believes there is a public benefit derived from the provision of the directory.[65] As such, Telstra asserted that it should not be required to subsidise the cost of two social policies that undermine each other:

Telstra is required by its CLC to subsidise the cost of delivering the White Pages. If the charges for directory unlisting are prohibited and Silent Line becomes a tool of social policy, Telstra would also be required to subsidise the costs of delivering the competing social policy obligation, being the provision of directory unlisting. Government has chosen the paramount social policy in the White Pages CLC. The other should be allowed to make a reasonable return.[66]

2.43      Telstra also commented that if the Silent Line fee were prohibited, the number of people who would request an unlisted number could increase significantly enough to render the national telephone directory useless.[67] The current number of Silent Line residential customers has remained consistent at 16 per cent of the residential fixed line customer base for the last four years.[68] For Telstra this demonstrates that a stable balance exists between the availability of directories information and the interests of individuals who wish their contact information to remain private.[69]

At $2.93 per month (inc. GST) the fee is just high enough to prevent most people from making an unthinking or reflective choice to unlist, but modest enough to be readily paid by the few who really want or need to be unlisted.[70]

2.44      Telstra also argued that the impact of a dramatic rise in unlisted numbers would be felt most critically by consumers, who as individuals may see no disadvantage in being unlisted, but who in aggregate will suffer from a reduced ability to make social connections.

The relationship between an increase in unlisted numbers and a decline in the national directory's ability to facilitate connections is not likely to be linear. The national directory will become ineffective as soon as users think it will more likely than not that the listing they need will not be found there, because at that point they will cease to use the directory. Although we cannot know exactly where this tipping point lies, it must be reached before all numbers are unlisted.[71]

Committee comment

2.45      As the Australian Law Reform Commission stated in its report, For Your Information: Australian Privacy Law and Practice, privacy is a recognised human right and generally should take precedence over a range of other countervailing interests, such as cost and convenience.[72] The ALRC also recognised however that privacy rights will clash with a range of other individual rights and collective interests.[73]

2.46      The committee acknowledges the concerns raised by submitters that the charging of a fee for an unlisted number in the national public number directory may interfere with elements of their right to privacy. Furthermore, the committee appreciates that in addition to privacy being an individual right, people who have experienced domestic violence or who would be placed in a vulnerable position should their personal information become public are compelled to maintain their privacy. For these people even a modest charge to have an unlisted number could prove a barrier to their protection.

2.47      The committee also agrees with comments made by Telstra that for now there remains public interest in maintaining a nationally available public telephone directory to assist people maintaining communication. The White Pages has been published for a considerable period of time and is relied upon by many people for its information. Indeed the committee particularly notes the statistics provided by the Australian Communications and Media Authority that 88 per cent of all Australians have used either the electronic or hardcopy White Pages or Directory Assistance services in the past 12 months. The inclusion of the production of a public telephone directory in Telstra's Carrier License Conditions is indicative of its importance to the Australian public.

2.48      The committee is pleased that Telstra has agreed to formally implement a policy to waive the Silent Line fee for telecommunication users who face a demonstrated security threat. The empowerment of customer service agents to respond to an applicant's individual circumstances and apply the fee exemption where appropriate is also welcomed. The committee considers that these measures will help to ensure the privacy of those people who would be placed at risk if their personal information were to become public. The victims of domestic violence have a right to ensure their personal safety and this should not come at a cost to them. The committee acknowledges that through Telstra's announcement, the ability of victims to maintain their privacy free of charge is now available.

2.49      The committee agrees with comments made by Telstra that if it is compelled by its Carrier License Conditions to produce a national telephone directory, that it would be inconsistent for it to then also be compelled to support a government policy that could encourage users to remove themselves from that directory. Eventually this position would undermine the purpose and usefulness of the directory. The committee therefore considers that a nominal charge which has the effect of ensuring that most people do not unlist their number is beneficial to the directory and ultimately to the community.

Recommendation 1

2.50      The committee recommends that the Telecommunications Act 1997 not be amended to prohibit the charging of a fee for an unlisted (silent) number on a public number directory.

2.51      The committee notes that there may be confusion that telecommunications users have in establishing how their personal information that they are required to supply by law may ultimately be used. The creation and use of the IPND and the public directories that flow from this information, in conjunction with the White Pages directory produced separately by Telstra's subsidiary Sensis, can lead to confusion as to what personal information is produced where.

2.52      The committee believes that establishing a single repository of data may make it easier for users to track their information and avoid having to go through multiple sources to maintain their privacy. The committee urges the Department of Broadband, Communications and the Digital Economy, through its current review of the IPND, to address these concerns, potentially by giving consideration to creating a single repository of telecommunications data.

2.53      The committee also sees value in the Australian Communications and Media Authority producing information for consumers on what public telephone directories exist and how users can go about keeping their personal information private.

Recommendation 2

2.54      The committee recommends that the Australian Communications and Media Authority produce relevant material for telecommunications users that explains where their personal information is published and how it may be made private.

 

Senator Simon Birmingham
Chair

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