In P and Retail Company [2011] AICmrCN 10 the Privacy Commissioner considered the operaiton of NPP 1.1,  collecting personal information  necessary for one or more its functions or activities, and NPP 1.2, collect information only by lawful and fair means and not in an unreasonably intrusive way.

FACTS

The complainant alleged that a retail company recorded outbound calls it made  without providing notification that it was recording the calls.  The complainant objected as they had not been notified or asked for their consent to record the calls. The retail company verbally apologised but stated that it had  advised the complainant through an interactive voice response system when the complainant made his/her first inbound call to the retail company. The  retail company’s argument was that the complainant was therefore aware the call was being recorded and consent to the collection of such information could be implied.

DECISION

The retail company outlined that its collection of information via the recording of calls was for training, coaching and monitoring purposes including to process orders and action enquiries. The Commissioner took the view that the collection of the information by recording phone calls was necessary for one of the retail company’s functions and the company had met the requirements of NPP 1.1.

In considering whether the collection was by fair and lawful means, the Commissioner had regard to the relevant industry standards and The Telecommunications (Interception and Access) Act 1979 which requires that all parties in the telephone conversation must have actual knowledge that the conversation will be monitored and this notification must occur prior to the activity taking place for both inbound and outbound calls.

The Commissioner did not accept that the subsequent calls received by the complainant were a continuation of the original incoming call where notification had been provided, rejecting the argument that there was implied consent from the complainant when it collected personal information in subsequent outbound calls. The Commissioner regarded the the retail company’s privacy policy as not providing sufficient notification that the collection of information via call recording would occur.  The Commissioner considered that the issue of consent was not relevant in this case as NPP 1 does not require organisations to obtain consent before collecting personal information about an individual.

But as the complainant was not notified that the retail company was recording outbound calls  the Commissioner foundthat the collection of personal information during such calls was unfair and unlawful.

The retail company changed its procedures for recording calls and implemented a procedure where a standard script is read by the relevant staff member when making outbound calls to advise the individual the call is being monitored and recorded for training purposes. The retail company offered to apologise in writing to the complainant rather than making a public apology. However, the complainant did not pursue this offer.

ISSUE

Given the nature of the findings it is somewhat surprising that there was no award of damages.  One would have thought that recording without notice is a fairly egregious breach of one’s privacy.  The argument by the retail provider claiming implied consent was, correctly, found to be inadequate.