Tue | Sep 25, 2018

Digicel correct in refusing INDECOM subscriber data - Court

Published:Sunday | July 5, 2015 | 12:00 AMMcPherse Thompson
Digicel's headquarters overlooking the Kingston waterfront.

Telecommunications provider Digicel Jamaica was correct in refusing to provide call data and subscriber details to the Independent Commission of Investigations (INDECOM) because it did not specify that it was investigating a criminal offence, the Court of Appeal has ruled.

The Court said that if INDECOM had properly specified the purpose for which the notice was issued, it would have been entitled to the subscriber information under subsection 47(2)(b)(i) of the Telecommunications Act.

However, Justice Patrick Brooks, who wrote the judgment of behalf of the three-member panel, which included Justice Mahadev Dukharan and Justice Norma McIntosh, said the notice did not specify the purpose, and Digicel was, therefore, obliged to refuse INDECOM's request.

In the appeal, the main issue for determination was whether INDECOM may compel a telecommunications service provider to supply it with information which the Telecommunications Act and the Interception of Communications Act require the provider to keep secret and confidential.

Digicel raised that question, among others, by way of a claim in the Supreme Court. Digicel contended that the provider was not compellable, but INDECOM opposed that position. On June 20, 2013, Justice Ingrid Mangatal ruled that the provider was not compellable, and INDECOM appealed against the judge's decision.

Justice Brooks, in outlining the facts, noted that Digicel is licensed under the Telecoms Act to provide telecommunication services, including voice and data services. In the course of its business, it comes into possession of subscriber information and call, traffic information generated through subscribers' use of its voice services. The information is all in digital format, and Digicel stores it.

In September 2011, INDECOM was in the process of investigating the killing of a man by the police. By letter dated September 27, 2011, INDECOM issued a notice to Digicel requiring the company to provide call data and subscriber details for several telephone numbers.

The notice was said to have been issued in accordance with section 21 of the INDECOM Act, but it gave no reason for requiring the information.

Digicel, after seeking legal advice, informed INDECOM that although it was not averse to providing the information, it was precluded from doing so by both the Telecoms Act and the Intercept Act.

Negotiations between the parties failed to break the deadlock and Digicel sought the assistance of the court to resolve the dispute.

In the Supreme Court, Justice Mangatal ruled that, while INDECOM was not entitled to the subscriber information, in appropriate circumstances, such as if the notice had properly specified the purpose for which it was issued, which was the investigation of a criminal offence, Digicel could have exercised its discretion in favour of the request.

Justice Brooks said that, where the information is required for the investigation or prosecution of an offence, there could be no justification, in the context of section 47(2)(b)(i) of the Telecoms Act, for the provider withholding the information.

As was recognised by Justice Mangatal, he said INDECOM has significant responsibilities for investigating criminal offences by agents of the State.

It is to be noted in the instant case, however, and Justice Mangatal stressed in her judgment, that INDECOM's notice did not inform Digicel that it was investigating an offence.

Justice Brooks said Digicel would not, in those circumstances, have been required by the provisions of section 47(2)(b)(i) of the Telecoms Act to provide that information because INDECOM did not communicate that it was acting in accordance with its mandate.

Where INDECOM indicates that it requires "disclosure for the purpose of the investigation or prosecution of a criminal offence", the provision of section 47(2)(b)(i) of the Telecoms Act would have been satisfied. In that case, the telecommunications provider must disclose the required information. It would then have the protection, provided by section 47(3) of the act, from civil action or suit, Justice Brooks concluded.