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By Ruth Hoy, 25 June 2009 11:37

COMMENT

Does the UK's new mobile phone directory go far enough to protect your privacy? Lawyer Ruth Hoy weighs in.

Last week's launch of the UK's first mobile phone directory, which claims to be able to connect anyone to more than 16 million mobile users for a small charge, was always bound to ignite contention around privacy.

Connectivity, the organisation behind the 118 800 service, has assured that personal privacy is its paramount concern and has taken measures to appease doubters - but has it done enough?

What's interesting is that while most of us don't seem to mind having our landlines listed on public directories, when it comes to our mobile phone numbers, we expect a higher level of privacy.

This could be for number of reasons, including the personal nature of the device, as it travels with us at all times, and the fact that traditionally, most mobile numbers are disclosed to people personally, such as family or colleagues, at the discretion of the owner. The idea of being able to be contacted by the public at large is therefore perceived as somewhat disturbing.

With these concerns raised, very publicly, Connectivity has been proactive in attempting to put doubting minds at rest. To begin with, the 118 800 service does not divulge the number of the individual to the caller. Instead, callers state the name and home town of the individual that they wish to speak to. Connectivity then searches its database and attempts to match the details provided with an entry in the database.

If a match is found, Connectivity calls or texts the entry and asks if they are happy to be connected to the caller. At this stage, the individual who has been contacted can choose to refuse to accept the call or be connected to the caller. Callers are charged £1 if a connection is made in addition to a charge per minute for the call.

This charge may allay customers' fears that this service will simply provide another method for companies to provide spam marketing. It is unlikely to be used for this purpose due to the relatively high cost of £1 per entry compared with 15 pence per entry if a whole database is purchased (from a direct marketing company).

The Information Commissioner's Office (ICO) has acknowledged the privacy concerns but has given the service the go ahead. The ICO specifically pointed to the fact that the mobile numbers are not given out, therefore keeping personal information private. Therefore, once a connected call has been terminated, the original caller does not retain the contacted individual's mobile number.

The ICO even went so far as to describe it as "privacy friendly", because individuals can opt-out of the service easily. Connectivity does enable individuals to use a free 'opt out' of their service by sending a text message or visiting their website.

However, it's questionable as to whether these measures answer the crux of privacy campaigners' problem. One of the biggest questions is over how the numbers for the database are sourced to begin with. Connectivity has not been particularly candid about this. However, it claims it has used various legitimate sources. Privacy campaigners argue that the organisation's unwillingness to disclose data sources is concerning.

In addition, Connectivity has justified using other consumer lists to create its database because consumers are provided with an 'opt-out' consent. However, critics have argued an 'opt-in' system rather than an opt-out system should have been used. At the time of providing consent to the use of their personal data, it would be unlikely that mobile owners would have had in mind the specific purpose for which their number would be used (given that the service did not exist at that time).

Simon Davies, director of Privacy International, was involved with Connectivity but left two years ago following the decision to use an opt-out system, which obviously isn't for appeasing privacy campaigners.

Still, there are concerns surrounding how this information could be exploited by advertisers. 118 800, is, in reality, no different to companies using consumer lists to make cold calls, although it is easy to jump to the conclusion that the service could be perceived a breach of an individual's privacy.

However, as more people rely on their mobile phones as the only accessible number, marketers have expanded their directories to include mobile numbers as well. Although we like to assume mobile phones have a layer of implied privacy, these cold calls are in no way illegal.

The success of this service is largely dependent on the majority of consumers not electing to opt-out of the system. Despite these concerns, consumers may come to view this service as very helpful and valuable, however this could take some time.

By providing a simple opt-out system, Connectivity has enabled consumers with strong privacy concerns to easily remove themselves from the service. In time, following the success or failure of this service, we may therefore be able to get a good impression of how strongly consumers feel about protecting their privacy.

Ruth Hoy is a partner at law firm DLA Piper's IP and technology group.