The Commerce Commission has closed an investigation into a potential breach of a confidentiality order. The investigation followed the disclosure in the Independent and the National Business Review in August 2009 of details of a confidential commercial interconnection agreement between 2degrees and Vodafone.

The Independent article containing this information named Vodafone as the source of the information. The Independent would not provide further details of how it obtained this information, claiming protection under section 68(1) of the Evidence Act from being required to identify a source where an assurance of confidentiality has been provided.

The Commission has been advised by Vodafone that they were satisfied that there was no authorised leak of the confidential information. Vodafone have also provided an assurance to the Commission that they will remind all of their staff that breaches of confidence are unacceptable.

 The Commission has also been advised by 2degrees that they were confident that the leaked information did not come from within 2degrees.

"The Commission has not been able to establish the source of the potential breach" said Dr Ross Patterson, Telecommunications Commissioner. "As a result, and in light of the above assurances, the Commission has decided to close the investigation. However, if further relevant information comes to light, the Commission will consider re-opening the investigation".

Parties often supply the Commission with information that is highly commercially sensitive. Parties need to be able to trust that the Commission has robust processes in place to ensure that confidential information is treated appropriately.

"The Commission reiterates its expectation that all parties will have processes in place to ensure that confidential information is handled appropriately in the context of Commission investigations. The Commission also expects parties to regularly remind their staff of the importance of preserving the confidentiality of such information," said Dr Patterson.

On 13 August 2009, the Commission confirmed that commercial interconnection agreements provided to the Commission should still be confidential. This protection remains in place. Any re-publication of the information risks breaching the Commission's Section 100 order.


Background

Section 15(i) of the Telecommunications Act 2001 incorporates section100 of the Commerce Act Section 100 provides the Commission with powers to prohibit disclosure of information, documents, and evidence. .

Section 100(1) states that the Commission may make an order prohibiting:

(a)       The publication or communication of any information or document or evidence which is furnished or given or tendered to, or obtained by, the Commission in connection with the operations of the Commission:

(b)       The giving of any evidence involving any such information, document, or evidence.

Section 100(4) states that:

Every person who, contrary to any order made by the Commission under subsection (1) of this section, publishes or communicates any information or document or evidence commits an offence and is liable, on summary conviction, to a fine not exceeding $4,000 in the case of a person not being a body corporate, and $12,000 in the case of a body corporate.

Only the courts can decide if an offence has been committed and set appropriate penalties.

The confidentiality order in relation to the mobile termination rates investigation is available on the Commission's website www.comcom.govt.nz under Confidentiality Order.

Under this confidentiality order, information has been classified:

  • restricted information - this classification applies under clause 8 of the confidentiality order, where it is certified that this protection is necessary in order to avoid likely unreasonable prejudice to the commercial position of the person who supplied or who is the subject of the Information. Restricted information can be accessed, in accordance with clause 11 of the confidentiality order, by specified persons who have signed the Deed of Undertaking at Schedule 1 to the confidentiality order;
  • additional protection - this classification has now been applied to all commercial interconnection agreements, so that certain additional conditions must be met before parties can access this information; and
  • Commission only information - the Commission has accepted that some information should be restricted so that only the Commission could view it.