A debt collection agency faxed to a solicitor's workplace a demand letter about a personal debt allegedly owed by the solicitor. The solicitor immediately asked the debt collection agency not to use the fax machine but to write to him. He provided a postal address for that purpose. The debt collection agency then sent another fax to the solicitor about the faxed letter.

The solicitor said he shared office premises and the fax machine with another company. He claimed the faxes were seen by the office receptionist (employed by the other company) and by his secretary.

I formed the view that the agency's actions were in breach of information privacy principle 11, but was not made aware of any adverse consequences suffered by the solicitor.

The debt collection agency explained that it sent faxes to limited liability companies, sole traders and partnerships only if they owned the fax machine. It claimed that it had established the solicitor owned the fax machine before sending the fax and disputed the solicitor's claim that he shared office premises and the fax machine.

My investigation established that the solicitor's firm did in fact share premises with another company. Although the solicitor owned the fax machine it was used by that other company as well. The complaint raised issues under information privacy principle 11, which limits the circumstances in which personal information may be disclosed.

For there to be a disclosure under principle 11, it is necessary to show that a third party received information of which it was previously unaware. I was satisfied that in faxing both letters, without first contacting the solicitor to ensure he would retrieve the faxes himself, the debt collection agency disclosed information about the solicitor to the receptionist and to his secretary. I took the view that they were unlikely to have known the information contained in the faxes until they were read.

Principle 11 sets out a number of exceptions allowing disclosure. Having satisfied myself that there was a disclosure, I had to consider whether any of those exceptions applied in the circumstances. Principle 11(d) allows a disclosure if the agency believes on reasonable grounds that the disclosure has been authorised by the individual concerned.

The debt collection agency claimed that the solicitor had authorised any disclosures which were made. It suggested that because the solicitor had established a method of communicating by fax with its client (the creditor), the debt collection agency was also entitled to use faxes to communicate with the solicitor. Having established the fax as a method of communication, the debt collection agency considered that the solicitor could not subsequently reject that method.

It was clear that the solicitor had never directly authorised the debt collection agency to communicate with him by fax. I rejected the notion that the solicitor's dealings with the creditor created an implied authorisation for the debt collection agency to communicate with him by fax. I considered that for principle 11(d) to apply the authorisation should be explicit. In this context, I noted that the debt collection agency could have sought an express authorisation by calling the solicitor before faxing the first letter to him.

In any case, it must be possible to revoke an authorisation (whether express or implied) by a subsequent act. I noted that the solicitor had specifically instructed the agency not to send him faxes and had provided a postal address so the agency could write to him. The second fax sent to the solicitor directly contravened these instructions.

For these reasons, I concluded that the debt collection agency did not have an authorisation, express or implied, to send faxes to the solicitor. None of the other exceptions to principle 11 applied. By sending the faxes, and by disclosing information in the process, it breached information privacy principle 11.

Section 66(1) provides that an action will be interference with privacy if it breaches an information privacy principle and results in some adverse consequence for the complainant. Although I accepted the agency's actions breached principle 11, the solicitor did not advise me of any adverse consequences arising from the breach. I was therefore unable to form the opinion that it had caused an interference with his privacy and I closed my file.

August 1999