If Ebenezer Scrooge lived in the 21st-century, a pre-epiphany Ebenezer Scrooge might very well have added the following consumer information debacle into his playbook (if he had not been the one to devise it first).
Strangely, a Canadian Cable Company posted on Facebook the names of its customers that had overdue due bills. Apparently, from an image of the Facebook post still remaining online (which does not include the names), the Cable Company had not yet disconnected the services of those publicly outed. While the company may have been persuaded that some with overdue bills will make payments once shamed (the employee who proposed the idea reports this to have occurred), this idea is shortsighted in many respects. To begin with, it may create legal issues for the company.
Regulatory Violations – Maybe, Maybe Not
At the foremost, the publication of consumer customer information publicly on Facebook may violate applicable regulations and statutes. The Office of the Privacy Commissioner successfully requested that the company remove the content from Facebook. As the Canadian Personal Information Protection and Electronic Documents Act provides, its purpose is to
to establish, in an era in which technology increasingly facilitates the circulation and exchange of information, rules to govern the collection, use and disclosure of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances.
Section 3. (emphasis added). Section 5(3) specifically repeats that “[a]n organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances.” Even if this Cable Company argues that consumers consented, such consent would need to be fully informed. Indeed, the PIPEDA provides that
the consent of an individual is only valid if it is reasonable to expect that an individual to whom the organization’s activities are directed would understand the nature, purpose and consequences of the collection, use or disclosure of the personal information to which they are consenting.
I doubt any customers anticipated that their information would be published on Facebook. Indeed, as TheStack.com reports, some people have intuitively believed it to be illegal to engage in such conduct and “abusive to your customer base.”
Now, the foregoing being said, the PIPEDA does also provide that “an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is . . . for the purpose of collecting a debt owed by the individual to the organization . . . .” Arguably, the Cable Company will rely on this provision to supports its legality argument. However, it would be surprising if those drafting the PIPEDA anticipated public disclosure of consumer information on Facebook when it made an exception for disclosure of information for purposes of collecting a debt.
Beyond regulatory concerns, it could provoke any number of civil claims against the company. Off the top of my head, applicable claims in several jurisdictions could include public disclosure of private facts and false light. Depending on the jurisdiction, it could give rise to private actions under consumer statutes.
Whether any litigation will arise from the publication of this content on Facebook, it represents a very poor business decision. While some of the customers may pay because of the shame the Cable Company sought to bring upon them, the negative backlash and publicity could affect the company more significantly. Indeed, the publication of the consumer data online exhibits a lack of compassion and understanding. While some people may clearly intend not to pay for nefarious purposes, some people may be facing financial hardship that came upon them unexpectedly. Publicly “outing” your customers on a Facebook is a bad decision, period.
If a company really must disclose such information, they should file suit. But, even then, filing suit over $100 in overdue bills (apparently, there existed a range of amounts owed between $94.25 to $1,406.80) may not be the smartest business decision either – even if you could collect the costs and legal fees.
For consumers, absent a class action, litigation against a business that publishes consumer information in the form of overdue bills on Facebook or any other publicly available space will not likely be affordable or a smart decision (you will be republishing the very content you seek to remove). Assuming the company removes your name and information upon payment, it would be more economical and efficient to pay the amount due than proceed with litigation. (Of course, should others repost the information on other sites, it may very well be difficult to put the genie back in the bottle once released and remove the information from the Internet.).
That being said, a consumer could contact appropriate administrative agencies to report the conduct and perceived privacy violations. Additionally, like the business, an individual could also resort to public comment. But, in doing so, an individual should be careful to remain in the confines of opinion and truth. If a company outs its debtors on Facebook, it may very well sue those who speak negatively about it online.
That being said, and without diminishing the poor judgment the company used, a consumer should communicate with businesses to whom they owe money. Communication is key. Many companies will be compassionate and understanding as well as work with consumers on payment arrangements. And, many times, some payment – even if not what is owed – will be a demonstration of good faith.
For businesses, you should not publish negative consumer information about your customers on your Facebook page or any other publicly available portal. Period. You should communicate with legal counsel to obtain sound recommendations about the consequences of such a flawed approach to consumer collection practices. You should secure legal counsel to review your policies and agreements. You should ensure your legal counsel has experience in consumer and privacy law. But above all, you should not publish consumer information about those who owe you money on Facebook or other public online forum that will be embarrass and harm your customers.
Whether “legal” or not, it represents shortsightedness at its worst. It appears callous and uncaring, at any time of year. At this time of year, it exemplifies the mindset of the pre-epiphany Scrooge.