Telcos Required to Seek Informed Consent to Use Subscriber Information

The Federal Court of Appeal has ruled that a phone company infringed federal privacy laws by not informing first-time subscribers, at the time of enrolment, of the primary and secondary purposes for which their personal information was collected and in not informing them at that time of the availability of the non-published number service. Canada's phone companies have for years collected their subscribers' personal information for listing in white pages, 411 services and for other uses, including: making the information available to independent directory publishers and other organizations; publishing the listing information in online directory assistance services which allow reverse searching by address or phone number; and making the listing information available via CD-ROM for retail use. In Englander v Telus Communications Inc (2004 FCA 387), the Federal Court of Appeal ruled that Telus, the nation's second-largest phone provider, infringed section 5 of the Personal Information Protection and Electronic Documents Act (PIPEDA) by failing to inform subscribers of the primary and secondary purposes for which they collected subscriber personal information. Writing for a unanimous court, Décary JA disagreed with both the lower court and the conclusion of the Canadian Radio-television and Telecommunications Commission (CRTC) that a reasonable person would consider it appropriate that his or her name, address and phone number would be listed in a directory and 411 service as part of their residential telephone service without first being made aware that he or she could opt out. The court also found that there was "no evidence that [secondary services, such as the sale to other organizations, listing in online directory assistance services and publication in CD-ROM format for retail use] were so connected with the primary purposes of telephone directories that a new customer would reasonably consider them appropriate" without explicit consent. Further, the Court ruled that the decision of the CRTC to permit Telus and other phone companies to charge $2 per month for unlisted service was reviewable by way of application under PIPEDA, but did not violate any statutory privacy protections. Confirming a holding in an earlier case (Eastmond v Canadian Pacific Railway) reported in E-TIPSâ„¢ (Vol 3 No 1, June 23, 2004), the Federal Court is not bound to give any deference to a finding by the Privacy Commissioner. A proceeding in the Federal Court under section 14 of PIPEDA is not an appeal from the Privacy Commissioner's decision, but is a fresh hearing of the application. For the full reasons of the Federal Court of Appeal, visit: http://decisions.fca-caf.gc.ca/fca/2004/2004fca387.shtml. Summary by: Jason Young