The Complaint
Autotoll is the service provider of the Electronic Toll Collection System ("ETC System") in Hong Kong. It allows the manual in-lane toll collection process to be automated by deducting the toll from a pre-paid account. On the application form for an account with Autotoll, an applicant is required to supply various personal data which includes his Hong Kong Identity Card ("HKIC") number and HKIC copy.
The Appellant took the view that it was unnecessary for Autotoll to collect any of the requested data and lodged his complaint with the Commissioner.
Findings of the Commissioner
In response to the Commissioner’s enquiries, Autotoll argued that the collection of HKIC numbers from the applicants was necessary to safeguard against damage or loss which was more than trivial in the circumstances under Paragraph 2.3.3.3 of the Code of Practice on the Identity Card Number and other Personal Identifiers ("PI Code"). According to the figures provided by Autotoll, in 2012 the monthly average total negative balance owed by individuals was $341,000, and the average number of such accounts was $3,459 per month of which those exceeding $1,000 was 10.33 with an average negative balance of $1,852 and the highest amount owed was $14,294. Between 2009 and 2012, the number of accounts of individuals where the total undercharged toll exceeded $5,000 was 14 with an average outstanding amount of $10,438 and the highest amount was $28,777.
The Commissioner used the sum of HK$1,000 as the benchmark. This was based on previous Investigation Reports R10-9866 (Octopus Rewards Program) and R12-3890 (Moneyback Program), of which a potential loss of $1,000 / $800 per customer was considered trivial. The Commissioner finally came to the findings that the loss and damage was more than trivial which justified the collection of HKIC number. The Appellant appealed against the Commissioner's decision.
The Appeal
Paragraph 2.3.3.3 of the PI Code
The AAB considered that the purpose of collection of the data was to enable proper running of the ETC System, namely the proper and timely collection of toll from responsible account holders. In comparison to the two Investigation Reports where a customer might choose not to provide the data which rendered him unable to claim the bonus points or rewards dollars, Autotoll as a business should not be compelled to suffer loss of revenue because its customers could choose not to disclose their data.
The AAB opined that it was inappropriate to draw the line by adopting an arbitrary figure, whether it be $800, $1,000 or some other higher figure. The line should be drawn by distinguishing genuine commercial loss essential to the very operation of a service provider from artificially created loss such as bonus points and cash rewards. The collection of undercharge and unpaid toll went right to the heart of Autotoll business.
The Board accepted that one must look not only at individual losses, but also at the total loss. Given the large customer base, a small debt per customer can build up to a very substantial sum.
At present, Autotoll resorted to debt collecting agents and maintained a bad debt list to deal with account holders who were in default. They required positive identification of the delinquent account holders to do so. The AAB considered that if the collection of HKIC number was disallowed, Autotoll might be forced to take other measures to protect their business interests. In view of the far reaching implications this might have on Autotoll’s business and interests of the tunnel and toll road operators, the AAB did not assume any right to interfere with legitimate business operations in the name of data protection.
Paragraph 2.3.4.1 of the PI Code
Paragraph 2.3.4.1 of the PI Code allows an HKIC number be inserted in a document for establishing legal right, interest or liability of any person which is not of a transient nature or trivial in the circumstances. The application form together with its terms and conditions contains a whole host of important rights and liabilities, e.g. the duties of an account holder to properly install the tag, to apply the correct tag to the specified vehicle, to inform Autotoll if the specified vehicle is replaced and to maintain the prepaid amount. The AAB found that these were rights and liabilities which were crucial to proper operation of the ETC System and therefore neither transient nor trivial under Paragraph 2.3.4.1 of the PI Code.
The AAB's Decision
The AAB considered that there was no contravention of DPP 1(1) or the PI Code. The AAB therefore confirmed the Commissioner's decision and dismissed the appeal. The AAB ordered that the case be sent back to the Commissioner to continue further investigation.
uploaded on web in April 2015