K and Finance Company [2011] AICmrCN 5 (22 December 2011): Privacy Commissioner determination regarding sections 6 and 18E of Privacy Act

March 15, 2012 |

In K and Finance Company [2011] AICmrCN 5 the Privacy Commissioner considered the application of section 18E which prohibits a credit provider from listing information on an individual’s credit file unless it has notified the individual that it may disclose their information to a credit reporting agency and section 6 which considers the defintion of serious credit infringement.

FACTS

The complainant advised he/she had signed as guarantor for a loan for a family member. The finance company who provided the loan to the family member subsequently listed a serious credit infringement on the complainant’s consumer credit information file held by a credit reporting agency.

The Commissioner after obtaining a copy of the loan contract showing the complainant was not a guarantor for the loan but was a joint borrower with the family member. The loan contract showed that the complainant was made aware at the time of signing the loan contract that his/her personal information may be disclosed to a credit reporting agency. The finance company had sent a number of demand letters to the complainant’s last known address and the mail had been returned marked ‘not known at this address’. A collection agent visited the complainant’s last known address and reported the complainant was no longer at the address, the complainant’s home telephone number had been disconnected, and messages left by the finance company on the complainant’s mobile telephone went unanswered.

DECISION

The Commissioner found that, at the time of the listing, the account was overdue and that the finance company had made reasonable efforts without success to contact the complainant and  that the complainant had stopped making payments under the credit contract and that the actions of the complainant would indicate to a ‘reasonable person’ an intention by the complainant to no longer comply with their obligations in relation to the debt.

The Commissioner closed the complaint under section 41(1)(a) of the Privacy Act on the grounds that the finance company had not interfered with the complainant’s privacy.

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