2003 - Complaints Case Notes 4

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Case Citation: F v Credit Provider [2003] PrivCmrA 4

Subject Heading: Unauthorised disclosure of credit worthiness information by a credit provider

Law: Section 18N(1), Privacy Act 1988

Facts

The complainant alleged that her credit worthiness information was improperly disclosed to her former partner by a retail store at which she had a credit account. The complainant had been in a relationship with a man, which had ended with both parties agreeing that he would make the remaining monthly payments on a consumer loan with a retail store and that he would keep the appliance for which the credit had been obtained. The complainant also maintained a separate general credit account with the store. When the relationship ended, the complainant asked the store not to disclose her personal information to her former partner.

When the former partner went to make a payment in person at the store, it was alleged that the store employee disclosed not only the amount owing in relation to the appliance, but also the balance of the complainant's general credit account.

The complainant said that she suffered anger and embarrassment over the disclosure and sought an apology and monetary compensation. The store apologised and, while not accepting that a disclosure had occurred, offered her a $50 gift voucher. The complainant did not feel that the offer was adequate to compensate her for the injury to her feelings and complained to the Commissioner.

Issues

Section 18N(1) of the Act states that a credit provider in possession or control of a 'report' must not disclose it, or any personal information derived from it, to another person for any purpose unless one of a number of exceptions applies. 'Report' is defined in s.18N(9) to mean 'a credit report ? or ?any other record or information, whether in a written, oral or other form, that has any bearing on an individual's credit worthiness, credit standing, credit history or credit capacity ?'.

'Credit provider' is defined in section 11B of the Act and also by Determination 2003 No.1 of the Privacy Act 1988.

Under section 52 (1) and (1A) of the Act, loss or damage suffered by a complainant, in relation to which the Commissioner may declare compensation to be payable, includes not only pecuniary loss, but also loss or damage which consists of injury to the complainant's feelings or humiliation.

The store submitted that, while it did not disclose the balance of her account, it did say to the former partner that 'her account was in arrears', with the implication that this did not amount to a disclosure of a 'report'.

The Commissioner took the view that to tell a third party that an individual was in arrears in relation to a credit account was to disclose a 'report' because the information had a bearing on the individual's credit worthiness, credit standing, credit history or credit capacity. None of the exceptions in s.18N(1) applied to permit the disclosure to occur.

The Commissioner also took the view, on the balance of probabilities, that the store disclosed the balance of the complainant's account to her former partner. In reaching this view, the Commissioner took account of the fact that the former partner had furnished a letter to the Commissioner which supported the complainant's allegations. While the statement was not in the form of a statutory declaration, the Commissioner took the view that the letter tended to corroborate the the complainant's allegation and was credible, particularly as the former partner did not wish to be involved in the investigation and provided the letter to the Commissioner only reluctantly.

Outcome

As a result of the investigation, the credit provider agreed to apologise to the complainant and pay compensation of $750. The complainant accepted this offer and the Commissioner discontinued his investigation on the grounds that the respondent had dealt adequately with the matter (s.41(2)(a)).

OFFICE OF THE PRIVACY COMMISSIONER
MARCH 2003