2006 - Complaint Case Note 15

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Case Citation: 

P v Electrical Goods Retailer [2006] PrivCmrA 15

Subject Heading:

Improper disclosure of personal information.

Law:

Section 8(1)(a) and National Privacy Principle 2.1 in Schedule 3 of the Privacy Act 1988 (Cth).

Facts:

The complainant gave an electrical goods retailer a deposit for a refrigerator and arranged to have the refrigerator delivered when the balance owing was paid. However, the refrigerator was delivered to the complainant’s house before the balance was paid.   The complainant did not pay the balance and refused to return the refrigerator.  Several months later the spouse of the sales representative who took the deposit attended the complainant’s residential address on two occasions requesting that the complainant return the refrigerator or pay the outstanding money. On another occasion the sales representative and spouse attended the complainant’s residential address together. The sales representative claimed that she was being threatened with dismissal over the incident and requested that the complainant resolve the situation by returning the refrigerator or paying the outstanding amount.   

After raising the issue with the electrical goods retailer, the complainant alleged to the Privacy Commissioner that the electrical goods retailer had interfered with their privacy by using their personal information to seek payment for or return of the refrigerator and by disclosing their personal information to the sales representative’s spouse during the retailer’s attempts to obtain the return of the refrigerator.

Issues:

The Commissioner investigated the complaint under section 40(1) of the Privacy Act. 

National Privacy Principle 2.1 provides that an organisation must not use or disclose personal information about an individual for a purpose other than the primary purpose of the collection unless an exception applies.  

The Commissioner’s investigation focussed on whether the electrical goods retailer had improperly used or disclosed the complainant’s personal information in its attempts to recover the refrigerator or secure payment of the outstanding amount.   

Outcome:

Following investigation of this matter the Commissioner formed the view that the use of the complainant’s personal information for the purpose of attempting to recover the outstanding debt was directly related to the primary purpose of the collection of the information. In addition, the Commissioner formed the view that while the complainant may not have expected the sales representative to attend their house in person, they would have reasonably expected a representative from the electrical goods retailer to contact them in relation to the dispute about the refrigerator. The Commissioner found, therefore, that the electrical goods retailer’s use of the complainant’s personal information for the purposes of resolving the dispute did not breach National Privacy Principle 2.1.  

The Commissioner also considered whether the disclosure of the complainant’s personal information by the sales representative to their spouse was a permitted disclosure under National Privacy Principle 2.1. The Commissioner rejected the electrical goods retailer’s claim that, as it had not been aware of the disclosure to the sales representative’s spouse, it could not be held responsible for the disclosure.  The Commissioner noted that section 8(1)(a) of the Privacy Act provides that an act done or practice engaged in by a person employed by an organisation in the performance of their duties of employment shall be treated as having been done or engaged in by the organisation. The fact that the sales representative’s partner was a party separate from the electrical goods retailer, and had called at the complainant’s home with and on behalf of the sales representative, meant that there was a disclosure of personal information about the complainant to the sales representative’s spouse. The personal information disclosed included the complainant’s identity, address, and details of the dispute with the electrical goods retailer. 

The electrical goods retailer also argued that the disclosure had been authorised by National Privacy Principle 2.1(f), an exception which provides that the use or disclosure of personal information is permitted by an organisation if it is a necessary part of an investigation into suspected unlawful activity. The Commissioner rejected this argument, noting that the sales representative’s spouse was not an employee of the retailer and, most importantly, because the electrical goods retailer had not been aware of the spouse’s involvement, the complainant’s personal information could not have been disclosed as a necessary part of its investigation.  

The Commissioner formed the view that the electrical goods retailer could not rely on the exceptions in National Privacy Principle 2.1 and that it had therefore breached National Privacy Principle 2.1 by disclosing the complainant’s personal information to the sales representative’s spouse.  

Although the electrical goods retailer did not agree with this view, it agreed to conciliate the matter. The parties agreed on a confidential settlement. The Commissioner then closed the complaint under section 41(2)(a) on the grounds that the electrical goods retailer had adequately dealt with the complaint. 

OFFICE OF THE PRIVACY COMMISSIONER
June 2006