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Case Citation:

H v Telecommunications Company [2009] PrivCmrA 10

Subject Heading:

Improper listing of a payment default on an individual's consumer credit information file

Law:

Section 18E in Part IIIA of the Privacy Act 1988 (Cth) and Paragraph 2.7 of the Credit Reporting Code of Conduct

Facts:

The complainant had an account with a telecommunications carrier for a mobile phone service.  The complainant's account was closed when they transferred their service to another carrier.  The complainant lost access to the original carrier's automated accounts management service usually provided to its customers. 

The complainant was issued with a bill for the closing balance of the original mobile phone account.  The complainant paid more than half of the amount owing.  The complainant claimed that they did not receive any further information from the carrier, nor a bill for the remaining amount. 

Six months later the complainant received a letter from a debt collection agency seeking payment of an outstanding account.  The complainant was unsure where the account had come from, called the debt collection agency and was referred to the original carrier.  The carrier confirmed the remaining balance and the complainant promptly settled the account. 

Several days later the complainant found a default listing recorded on their consumer credit file for the remaining balance.  Although the default listing was marked as ‘paid' they complained that it should not have been recorded on their credit file.

Issues:

Section 18E(8)(a) of the Privacy Act restricts information that can be disclosed by a credit provider to a credit reporting agency.

If a payment in relation to consumer credit is outstanding and remains unpaid, a credit reporting agency may record a ‘default listing' on the individual's consumer credit file.  The Privacy Act permits a credit reporting agency to list an overdue payment if:

• the payment is at least 60 days overdue (section 18E(1)(b)(vi));
• the credit provider has taken steps to recover part or all of the amount outstanding (section 18E(1)(b)(vi));
  • in particular, the credit provider must have sent a written notice to the individual's last known address, advising them of the overdue payment and requesting payment of the amount outstanding (paragraph 2.7 of the Credit Reporting Code of Conduct); and
• the credit provider has notified the individual that it may provide their information to a credit reporting agency (section 18E(8)(c)).

A credit provider must not give personal information to a credit reporting agency if under section 18E(1) it is prohibited (18E(8)(a)).

Outcome:

The Privacy Commissioner commenced an investigation of the matter under section 40(1) of the Privacy Act. 

The records kept by the original carrier confirmed that the complainant had transferred their mobile phone service and the account had been closed.  The carrier also confirmed that once a customer closes their account, they no longer have access to the automated accounts management service.  However, the carrier routinely provides closed account details to customers by mail, and customers can still contact the carrier by phone or in writing to enquire about those accounts.  Only online account access becomes unavailable.

The records also showed that after the account was closed the carrier had twice written to the complainant at their last known address.  The carrier included in those letters the closing balance of the account.  It also notified the complainant that if the account remained unpaid, their information would be passed to a debt collection agency and a credit reporting agency to be recorded on their consumer credit file. 

The carrier had not received payment and had no further contact from the complainant.  It then passed the details of the remaining debt to its debt collection agency.  It also passed the information to a credit reporting agency where the default listing was recorded.  When the debt collection agency successfully contacted the complainant, the complainant phoned the carrier and settled the outstanding balance. 

The Commissioner found that the default listing was correct.  At the time of the listing the balance owing was more than 60 days overdue.  The carrier had also written to the complainant at their last known address to seek repayment and notify them that their information would be passed to a credit reporting agency.  Additionally, once the complainant had settled the outstanding closing balance, the carrier amended the credit file held by the credit reporting agency to ensure that the overdue account was correctly marked as ‘paid'.

The Commissioner closed the matter under section 41(1)(a) of the Privacy Act on the basis that there had been no interference with the complainant's privacy.

OFFICE OF THE PRIVACY COMMISSIONER

August 2009