2004 - Complaint Case Note 19

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Case Citation:
E v Motor Vehicle Retail Organisation [2004] PrivCmrA 19

Subject Heading:
Use of personal information for the purpose of direct marketing.

Law:
National Privacy Principal 2.1(c) and section 41(1)(a) of the Privacy Act 1988 (Cth).

Facts:
This complaint was referred to the Commissioner by a state privacy office with the consent of the complainant. The complainant received direct marketing material sent by the respondent. The material advertised the respondent's retail business and targeted the complainant as an owner of a particular type of motor vehicle. The complainant complained about the use of his personal information in this way without his consent.

Enquiries of the respondent revealed that the respondent had collected the personal information as part of a marketing list specifically obtained from another organisation for the purpose of direct marketing.

Issues:
National Privacy Principal 2 sets limits on the use and disclosure of personal information by an organisation. National Privacy Principle 2.1 provides that personal information collected for a primary purpose may only be used or disclosed for a secondary purpose if one of a number of exceptions in National Privacy Principle 2.1(a)-(h) applies. The effect of this provision is that an organisation may use and disclose personal information for the primary purpose of collection.

The respondent advised that it had collected the personal information from another organisation in the form of a direct marketing list. It was apparent that the personal information had then been used for the purpose of direct marketing. The issue for the Commissioner was whether the respondent's use of the complainant's personal information was within the primary purpose of the collection of the personal information.

Outcome:
The Commissioner was of the view that the respondent collected the complainant's personal information for the primary purpose of direct marketing and used the personal information for this same purpose. There was therefore no breach of National Privacy Principal 2 as the respondent's use of the personal information was within the primary purpose of the collection.

Section 41(1)(a) of the Privacy Act gives the Commissioner a discretion to decline to investigate a complaint, where the act or practice is not an interference with the privacy of the individual. The Commissioner declined to investigate the complaint on the basis that there was no interference with privacy since the use of the complainant's personal information was permitted under the Act.

However, after being contacted by this Office, both the respondent and the organisation that supplied the complainant's personal information to the respondent agreed to remove the complainant's information from their databases and then confirmed that they had done so. The complaint was then closed under section 41(1)(a) of the Privacy Act.

OFFICE OF THE PRIVACY COMMISSIONER
December 2004