Determination
On 21/03/2003, the draft decision concerning the inclusion of subscribers personal data in telephone directories and information services was approved, DE008403CA. This draft decision determines that providers shall ensure the inclusion in contracts of the explicit indication of subscriber’s wishes regarding the inclusion or non-inclusion of the respective personal data in subscriber directories and its disclosure through information services, establishing that, where the space provided for that indication of wishes is not completed, data shall be available for transmission to the universal service provider, in order to be included in subscriber directories and disclosed through the information service, available in the scope of the Telecommunications Universal Service.
Within the context of a hearing of interested parties, the providers of the telephone fixed service only objected to the time limits provided for in the determination. Two providers of the Mobile Telephone Service, Vodafone Telecel – Comunicações Pessoais, S.A. and Optimus – Telecomunicações, S.A., took the view that subscribers’ personal data may only be made available through an explicit indication of wishes. The mere fact that the subscriber has indicated nothing cannot be presumed to be a sign of its consent regarding the transmission of data. Moreover, to presume that consent is given for the transmission of data to an operator that was not chosen would go beyond the purposes of Law no. 69/98 of 28 October and would go against all legal and constitutional provisions that seek to ensure the strict defence of personal data and the protection of the privacy of subscribers.
Having been requested to state an opinion on the referred project, the National Committee for the Protection of Data (CNPD) considered that its provisions meet the demands of Portuguese legislation regarding the protection of personal data, as far as the inclusion of subscribers’ personal data in telephone directories and information services is concerned, in the scope of the Telecommunications Universal Service. Nonetheless, it pointed out the existence of different regimes for the fixed telephone service and for the mobile telephone service.
As regards the mobile telephone service, point g) of paragraph 2 of article 9 of the Regulation for the Operation approved by Decree-Law no. 290-B/99 of 30 July, provides that adhesion contracts must contain an indication of the explicit wishes of the user regarding the inclusion or non-inclusion of personal data in user directories and circulation thereof via information services, whether or not the transmission of the mentioned data to third parties is involved. The CNPD deems that this assertion is more clearly rendered concrete through paragraph 1 of article 10 of that Regulation, which states that the providers of mobile telephone services must guarantee a free-of-charge register in the subscriber directory for users who explicitly request it, in compliance with the provisions on the protection of personal data and privacy.
Regarding the fixed telephone service, point b) of paragraph 3 of article 17 of Decree-law no. 474/99 of 8 November declares that adhesion contracts must contain an indication of the express wish of the subscriber concerning the inclusion or non-inclusion of the respective personal data in telephone directories and the transmission thereof through information services, whether or not the transmission of the mentioned data to third parties, with the same purpose or other, is involved.
Comparing the regimes set forth, the CNPD is of the opinion that, as far as the fixed telephone service is concerned, there is no need for the explicit request on the part of the data holder, contrary to what is provided for regarding the mobile telephone services.
The CNPD thus reaches the conclusion that the inclusion of personal data of holders of mobile telephone numbers requires an explicit prior solicitation, and it cannot be accepted that, as a default option, the personal data of the mobile service subscriber are made available in telephone directories and information services.
Notwithstanding the fact that no obstacle was pointed out regarding the adoption of the Determination as regards the fixed telephone service, regarding mobile services, the draft decision was deemed not to comply with legislation in force.
Within this matter, a particular heed must be given to the regime established by Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector, as regards directories of subscribers, which provides that data shall only be transferred with the consent of the holder, and if so, the holder shall be further able to decide which data may be included.
The regime in this Directive, the transposition of which to the national legal system is soon to be concluded, is consistent with the interpretation made by CNPD at present, as well as with the opinion of mobile operators who oppose to the adoption of this measure.
Therefore, in order to ensure that at the present time directories of the universal service subscribers are made available swiftly and effectively, it was considered that the most feasible way to render this measure concrete was to adopt a determination whereby different regimes are established for the FTS and for the MTS, welcoming from the start the principles to be implemented with the new Directive, the regime of which is intended for fixed and mobile telecommunication services in general.
Having regard to the provisions laid down in this Directive, and bearing in mind the reasoning presented by the providers of mobile telephone services and by the National Committee for the Protection of Data, the ICP-ANACOM deems that the alteration of the purport of the Determination is justified, for at the present time only this sort of measure may regulate under the law the relationship between mobile service providers and the Universal Service provider, safeguarding the offer of a global directory and the fulfilling the commitments undertaken by the Portuguese State within the scope of the Community measures provided by Directives 98/10/EC and 2002/58/EC.
In light of the above, and aiming to ensure to a full degree the right of telephone service clients to have an entry in telephone directories and in information services, and to guarantee the effective compliance with the obligations that arise from Decree-Law no. 458/99 of 5 November, in particular the obligation upon the universal service provider to elaborate, publish and make available to users subscriber directories of the fixed telephone service and of the mobile telephone service, the Board of Directors of ICP-ANACOM, pursuant to point g) of paragraph 2 of article 9 and article 10 of the Regulation for the Operation of Public Telecommunications Services approved by Decree-Law no. 290-B/99 of 30 July, as well as to point b) of paragraph 3 of article 17 of the Regulation for the Operation of the Fixed Telephone Service, approved by Decree-Law no. 474/99 of 8 November, determines, in compliance with the provisions of point g) of article 9, article 17, and point l) of article 26 of the Bylaws of ICP-ANACOM, in annex to Decree-Law no. 309/2001 of 7 December, the following:
1. The providers of mobile telephone services shall, within 30 (thirty) days, request of their clients that they explicitly state their wishes as regards the inclusion of their personal data in directories and information services, in particular in the scope of the Telecommunications Universal Service, making it clear that the absence of an explicit statement of wishes shall be deemed as a statement of a wish not to be entered in a directory.
2. Within 45 (forty five) days, providers of mobile telephone services shall submit to the Universal Service provider the particulars of all clients that explicitly authorized the transfer of data.
3. Within the same time limit, those providers shall submit to ICP-ANACOM information on the form and manner followed to comply with the provisions of the preceding paragraphs, as well as the indication of the number of clients that requested their entry in directories and the number of clients that did not deliver their statement of wishes.
4. FTS providers shall ensure the compliance with the provisions of the preceding paragraphs, within the same time limits and according to the same procedures, immediately after the entry into force of the Law that transposes Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002, concerning the processing of personal data and the protection of privacy in the electronic communications sector.
