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2. EDA's request for access to Ar Telecom's database
In this analysis, ICP-ANACOM believes that it is relevant to consider the terms of the initial request made by EDA to Ar Telecom. In this scope, it must be taken into account that, after this request was made and ICP-ANACOM's draft decision of 28 July 2011 was approved, Law No 51/2011, of 13 September, took effect, amending ECL and transposing Directive 2009/136/EC, of the European Parliament and of the Council of 25 November 2009, which amended the Universal Service Directive.
The contact established by EDA with Ar Telecom, in which the company explicitly invoked Community rules provided for in article 25 of the Universal Service Directive, aimed for the conclusion of a contract for the use of the latter's subscriber database, including at least the following data: name and surname or corporate name, street address and telephone number, post code, city, etc.
These data would be used for the provision of directory enquiry services and possibly online universal directories.
For this purpose, EDA requested Ar Telecom to submit, during the month of February 2010, a proposal similar to the one based on which it already sends its database to other directory editors in Portugal, under fair, objective, cost-oriented and non-discriminatory conditions 1.
This aspect should be stressed: EDA framed its request under the regime of the Universal Service Directive, establishing a first contact in which it requires Ar Telecom to submit a proposal for the provision of data on its subscribers, again, under fair, objective, cost-oriented and non-discriminatory conditions.
This request is thus legitimately based on paragraph 4 of article 50 of ECL, which appropriately transposes paragraph 2 of article 25 of the Universal Service Directive, EDA having full freedom to establish contacts with one, several or even all companies that assign telephone numbers to subscribers.
It should be remembered that the provision of directories and directory enquiry services is open to competition 2, thus the regime of the Universal Service Directive, on the one hand, gives subscribers the right to have their personal data included in a printed or online directory and, on the other, ensures that all service providers that assign telephone numbers to their subscribers are obliged to make relevant information available in a fair, cost-oriented and non-discriminatory manner, as laid down in recital 35 of the referred Directive.
The current version of ECL, which transposes the amended Universal Service Directive, reinforces rights conferred on this matter upon subscribers of publicly available telephone services, laying down explicitly:
- The right of end-users to access directory enquiry services, pursuant to paragraph 2 of article 50 [paragraph 2 d) of article 39];
- The right of subscribers to have an entry in directory enquiry services and directories, pursuant to paragraph 1 of article 50 [paragraph 3 h)) of article 39];
- The right of subscribers to have their personal data made available to providers of publicly available directory enquiry services and directories, this provision being subject to compliance with paragraph 4 of article 50 (paragraph 1 of article 54).
The mentioned paragraph 4 of article 50 of ECL lays down that "undertakings which assign telephone numbers to subscribers shall meet all reasonable requests for the supply of the relevant information on the respective subscribers for the purposes of the provision of publicly available directory enquiry services and directories, in an agreed format and on terms which are fair, objective, cost oriented and non-discriminatory".
In this respect, attention must now be drawn to a brief analysis of case-law of the Court of Justice of the European Union and of a decision of the Belgian Regulatory Authority, which have been invoked by EDA to emphasize arguments supporting its request.
In Case C-109/03, in the proceedings KPN v OPTA, the Court of Justice was requested to give a preliminary ruling on the interpretation of paragraph 3 of article 6 of Directive 98/10/EC of the European Parliament and of the Council, of 26 February 1998, on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment (ONP Directive) 3. This interpretation may be found in its Judgement of 25 November 2004, in which the Court of Justice concludes that paragraph 3 of article 6 of the ONP Directive must be interpreted as meaning that:
1) "Relevant information" that bodies assigning telephone numbers (in these proceedings, the universal service provider) must pass on to third parties refers only to data relating to subscribers who have not expressly objected to being listed in a published directory and which are sufficient to enable users of a directory to identify the subscribers they are looking for. Those data include in principle the name and address, including postcode, of subscribers, together with any telephone numbers allocated to them by the entity concerned. However, it is open to the Member States to provide that other data are to be made available to users where, in light of specific national circumstances, they appear to be necessary in order to identify subscribers;
2) With regard to data such as the name, address and telephone number, only the costs of actually making those data available to third parties may be invoiced by the supplier of the universal service. With regard to additional data which such a supplier is not bound to make available to third parties, the supplier is entitled to invoice, apart from the costs of making that provision, the additional costs which he has had to bear himself in obtaining the data, provided that those third parties are treated in a non-discriminatory manner.
On its turn, the Belgian Regulatory Authority - BIPT - by decision taken on 18 February 2009, determined and defined the conditions that govern the provision of the minimum set of data by telephone service providers to directory editors and providers of directory enquiry services. This decision was approved pursuant to the Belgian law transposing the Universal Service Directive, taking into account paragraph 2 of article 25 of this Directive as well as the Court of Justice case-law in the above-mentioned Judgement of 25 November 2004.
According to this BIPT decision, the minimum set of identification data to be comprised in all directories and directory enquiry services corresponds to elements required to identify a subscriber, including:
- Name and surname of the subscriber, as communicated by the latter;
- Full street address of the subscriber, as communicated by the latter;
- Telephone number assigned to the subscriber by the operator.
In case the subscriber has demonstrated, to his/her telephone service provider, his/her will to have the following elements included in a telephone directory or directory enquiry service, collected when the contract was concluded or amended, such elements must also be deemed to integrate the minimum set of identification data:
- Occupation of the subscriber, as communicated by the latter;
- Full name of the subscriber, as communicated by the latter;
- Identification of the persons living with the subscriber who wish to appear under their own name.
BIPT clarifies that this definition is without prejudice to the inclusion of additional data, insofar as the subscriber's consent has been obtained.
As regards the conditions for transmission of a minimum set of data, BIPT recalls that neither the Universal Service Directive nor the Court of Justice distinguish between, on the one hand, the provider of the universal directory and of the universal directory enquiry service and, on the other, directory editors or providers of directory enquiry services that do not provide the universal service.
As such, BIPT has determined that the minimum set of identification data must be provided free of charge to all directory editors or providers of directory enquiry services, by providers of telephone services that assign numbers to subscribers. Such providers may charge only the actual costs of transferring and providing data.
In case additional data are transmitted, providers of telephone services may charge for that transmission, under fair and non-discriminatory commercial terms.
ICP-ANACOM has also issued several decisions in matters relating to telephone directories, all of which concern the comprehensive directory to be made available by the universal service provider.
One of those determinations 4, under Decree-Law number 458/99 of 5 November, which transposed the ONP Directive, instructed the then Portugal Telecom, S. A., as universal service provider, to amend the proposals put forward on the structure of the presentation of client entries on telephone directories and on data collection files. Data to be included in such files, as far as fixed access was concerned, were then deemed to be as follows: name of client, telephone numbers, type of use - telephone/fax, installation address, name to be entered in the directory, directory distribution address, date on which data was changed and provider identification.
Later, a final decision 5 was approved on the inclusion of data of users of mobile telephone services (clients of Vodafone and Sonaecom) on universal service directories and directory enquiry services. ICP-ANACOM determined that it should be sent the following data: names, telephone numbers and post codes of users of mobile telephone services who expressed their wish to be included in universal service directories. In case users wished their street address to be included in such directories, this element could be submitted by providers, on the prior agreement from the National Data Protection Commission.
Minimum set of subscriber data
In the light of the entire legal framework, ICP-ANACOM takes the view that Ar Telecom must negotiate with EDA specific contractual terms allowing this company to obtain, under fair, objective, cost oriented and non-discriminatory conditions, the following minimum set of identification data, supplied as such by subscribers themselves:
- Full name of the subscriber;
- Full street address of the subscriber, which corresponds to the installation address in the case of the fixed telephone service;
- Telephone number(s) assigned by Ar Telecom or by another provider, received by Ar Telecom through portability, and respective type of use - telephone/fax.
For this purpose, cost orientation shall be deemed to mean that Ar Telecom may charge EDA only for costs incurred with the actual transmission and provision of data to this company.
This shall be without prejudice, naturally, to the negotiation, under fair, objective and non-discriminatory conditions, of the transmission of additional subscriber data. However, as this is not covered by the concept of "relevant information" for the purposes of paragraph 4 of article 50 of ECL, it is subject to the commercial freedom for parties as far as the price is concerned.
Protection of personal data and privacy
This matter is also subject to rules governing the protection of personal data and privacy (cf. paragraph 5 of article 50 of ECL), and in this context article 13 of Law No 41/2004, of 18 August 6, as well as paragraph 1 l) of article 48 of ECL must also be taken into account.
According to the mentioned article 13 of Law No 41/2004, subscribers must be informed, free of charge and before the respective data are included in printed or electronic directories, available to the public or obtainable through directory enquiry services, of the intended purposes of such directories and of any further possibility of use based on search functions embedded in electronic versions of the directories.
The article further lays down that subscribers have the right to determine whether their personal data are included in a public directory, and if so, which, to the extent that such data are relevant for the purposes of the directories, as determined by the provider of the directories. Additional consent must also be obtained from subscribers for any purpose of a public directory other than the search of contact details of persons on the basis of their name and, where necessary, of a minimum of other elements of identification.
The referred article 48 of ECL establishes as one of the elements which must be included in contracts for the provision of public communications networks or publicly available electronic communications services the explicit indication of subscribers' willingness in respect of the inclusion or not of their respective personal information in a public directory and on their disclosure through the directory enquiry service, whether or not the transfer thereof to third parties is involved.
To clarify and specify the content of each of the points of paragraph 1 of article 48 of ECL, by determination of 11 December 2008 7, approval was given to amendments to the Guidelines for minimum content to be included in electronic communications contracts, the initial version of which had been approved by determination of 1 September 2005 8.
Such guidelines provide that the standard contract must include appropriate blank spaces so that the subscriber may:
- Explicitly indicate its will on the inclusion of his/her personal data on directories and on their disclosure through the directory enquiry service, whether or not the transfer thereof to third parties is involved, with the option not to grant such consent, pursuant to paragraph 1 l) of article 48 of ECL and paragraph 2 of article 13 of Law No 41/2004;
- Indicate data to be included in a public directory, pursuant to the same provision;
- Explicitly give its consent for any use of a public directory beyond the search for details of persons based upon their name and, if necessary, upon a minimum of other identifying particulars, pursuant to paragraph 4 of article 13 of Law No 41/2004.
It is clear from the presented legal framework that Ar Telecom is subject, as from 2004, to the obligation to obtain from subscribers their explicit consent as to the inclusion or not in directories and to the disclosure through the directory enquiry service of data strictly required for their identification, covering any type of directories and enquiry services - except for directories whose use does not consist in the search of persons based on the name, for which an additional expression of will is required -, whether or not the transfer thereof to third parties is involved, pursuant to legislation of the protection of personal data.
Even before the ECL took effect this obligation already arose from the law and fell on providers both of mobile telephone services and of fixed telephone services [cf. paragraph 2 g) of article 9 of the Operation Regulation, approved by Decree-Law number 290-B/99, of 30 July, and paragraph 3 b) of article 17 of Decree-Law number 474/99, of 8 November].
Moreover, by determination of 18 of December 2003 9, and to implement these legal provisions, ICP-ANACOM ordered providers of mobile telephone services to request of their clients, within 30 days, that they explicitly stated their will as regards the inclusion of their personal data in directories and enquiry services, in particular in the scope of the Telecommunications Universal Service, making it clear that the absence of an explicit statement of will would be deemed as a statement of a will not to be entered in a directory. FTS providers were also ordered to ensure compliance with the same procedures, within the same time limits, immediately after the entry into force of the Law transposing Directive 2002/58/EC of 12 July 2002, concerning the processing of personal data and the protection of privacy in the electronic communications sector - which came to be Law No 41/2004.
In this regard, it is worth while noting the most recent case-law of the Court of Justice of the European Union, that in Case C-543/09, opposing Deutsche Telekom and the Federal Republic of Germany, gave a preliminary ruling on two issues concerning the inclusion of subscriber data in telephone directories provided in a competition system, that is, outside the scope of universal service obligations.
The Court was questioned on whether paragraph 2 of article 25 of the Universal Service Directive allowed national legislators to bind undertakings assigning telephone numbers to subscribers to make available, for the purpose of provision of publicly available directory enquiry services and directories, data on subscribers to whom they have not assigned telephone numbers, insofar as such data are in their possession. If so, the Court was questioned whether article 12 of the Privacy Directive should be interpreted as making the imposition of the referred obligation dependant on the consent for the transmission of data given by the other provider of the telephone service, that assigned the numbers under consideration, or by the respective subscribers, or, in any case, on a lack of opposition to such transmission.
By judgment of 5 May 2011, the Court of Justice answered in the affirmative to the first question, however it is the answer to the second question that must be considered on this case, as regards the issue of whether article 12 of the Privacy Directive made the transmission to a third party - provider of publicly available directory enquiry services and directories - of personal data conditional on renewed consent from a subscriber who already authorized the publication of his/her data on the directory drawn up by the universal service provider.
The Court concludes that article 12 of the Privacy Directive must be interpreted as not precluding national legislation under which an undertaking publishing public directories must pass on personal data in its possession relating to subscribers of other telephone service providers to a third-party undertaking whose activity consists in publishing a printed or electronic public directory or making such directories obtainable through directory enquiry services, and under which the passing on of those data is not conditional on renewed consent from the subscribers. This conclusion assumes that, one the one hand, those subscribers have been informed, before the first inclusion of their data in a public directory, of the purpose of that directory and of the fact that those data could be communicated to another telephone service provider, and, on the other hand, that it is guaranteed that those data will not, once passed on, be used for purposes other than those for which they were collected with a view to their first publication.
By applying this case-law to this situation and based on article 13 of Law No 41/2004, ICP-ANACOM considers that Ar Telecom was bound to have obtained, when each contract was concluded, the necessary indication of the will of subscribers as to the inclusion of their data on a public directory and on directory enquiry services such as those provided by EDA. Only in case EDA intends to make a use of data that does not consist in a name-based search of subscribers, would Ar Telecom be required to obtain an additional consent from subscribers. In this case, costs borne by Ar Telecom could be passed on the price negotiated with EDA. Conversely, if this additional consent has already been obtained from subscribers, there are no costs to be borne by this company that may be passed on the price to be negotiated with EDA.
Although EDA awaited ten months (by reference to the date of EDA's request to ICP-ANACOM) without receiving any response to the request submitted to Ar Telecom, and notwithstanding the fact that, in a commercial perspective, the type of agreement proposed seems to the company to make no sense (cf. point I - 2.4 above), ICP-ANACOM cannot, and must not, overlook the fact that Ar Telecom declares to be willing to comply with all applicable obligations.
In this context, and having the legitimacy of EDA's request been clarified in the light of the current regulatory framework, ICP-ANACOM deems that at this stage the preferred approach should now be negotiation between the parties, to the detriment of a unilateral establishment by the Regulatory Authority of the format and conditions for transmission of data under consideration.
This approach is consistent with the above-mentioned rules, in particular with paragraph 4 of article 50 of ECL, which prioritises the conclusion of agreements of a distinct commercial nature, through which the wish of subscribers to have their data published in directories other than the one set up by the universal service provider is fulfilled.
As such, and given that the letter sent to Ar Telecom by EDA represented a first contact that failed to be followed up, it is now up to the former to promote the establishment of negotiations between the parties.
For this purpose, Ar Telecom must present EDA with a proposal indicating the conditions under which the company will provide relevant information on its subscribers, for the purpose of the provision of publicly available directory enquiry services and directories. This proposal must comply with the applicable regulatory framework, and ICP-ANACOM deems that it should set out some of the terms and conditions to be observed, which result from the applicable legislation, from Community case-law and from regulatory decisions, as explained above.
This solution does not prevent the Regulatory Authority, naturally, from monitoring the development of negotiations between the parties.
1 In alternative, EDA suggested the sending of a standard contract.
2 Cf. article 5 of Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services.
3 This Directive was repealed by the 2002 Community regulatory framework. The directory and directory enquiry service matters were then governed by the Universal Service Directive, which was in the meantime amended by Directive 2009/136/EC of the European Parliament and of the Council, of 25 November 2009.
4 ICP-ANACOM determination of 11 January 2001, available at Provision of Directories and Enquiry Services (II)http://www.anacom.pt/render.jsp?contentId=417867.
5 ICP-ANACOM determination of 14 January 2009, available at Inclusion of MTS user's data in US directories and directory enquiry serviceshttp://www.anacom.pt/render.jsp?contentId=818858.
6 Transposes into national law Directive 2002/58/EC of the European Parliament and the Council of 12 July concerning the processing of personal data and the protection of privacy in electronic communications.
7 Minimum content of standard contracts - amendment of guidelineshttp://www.anacom.pt/render.jsp?contentId=808758.
8 Guidelines for minimum content to be included in electronic communication contractshttp://www.anacom.pt/render.jsp?contentId=419155.
9 Inclusion of subscribers personal data in telephone directories and information services in the scope of the Telecommunications Universal Servicehttp://www.anacom.pt/render.jsp?contentId=417954.
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