Making sense of ComCom's non-publication order

Leak of Vodafone/2 Degrees termination deal may have criminally infringed Commerce Act

The Commerce Commission is ordering media outlets not to republish the contents of a story broken by NBR earlier today outlining details of a mobile termination deal between 2 Degrees and Vodafone.

"Information contained in a National Business Review article entitled 'Revealed: Vodafone’s secret deal with 2degrees' potentially breached a Commerce Commission confidentiality order and section 100 of the Commerce Act," a statement from the Commerce Commission says.

"The commission has required immediate retraction of the article. Until the expiry of the confidentiality order, any republication of the content of the NBR article also risks breaching the Commerce Act."

NBR has removed the story from its website with a note saying lawyers are being consulted.

The commission says there will be no further comment at this time.

The order is peculiar in that it appears to derive from a ruling that submissions to the Commerce Commission's investigations into mobile termination rates are to be kept confidential. The confidentiality classification of information contained in submissions to the investigation was being revised when NBR's story broke.

A letter dated 30 July on the website details Comcom's confidentiality order and a timetable for providing further views on the restriction of information.

A letter from 2 Degrees, meanwhile, says that while Vodafone asked for the agreement between itself and Vodafone be in confidence in February, it did not repeat this request in May, asking only for a lower level restriction.

The July 24 letter from 2 Degrees says restricted disclosure, as requested by Vodafone, was appropriate provided interconnection agreements between other carriers were similarly classified.

However, 2 Degrees added that it was concerned about Vodafone's change of request between February and May as the agreement contains information that is "confidential to both parties".

Vodafone had challenged 2 Degrees in the media to make the agreement public.

Vodafone argues that agreements — apart from that between itself and 2 Degrees — should remain confidential. It says the agreement between itself and 2 Degrees has "sufficient public interest to be made public".

Telecom's response to the issue, requesting that data be kept confidential, indicates data about the length of calls, on-net calling and other details are considered sensitive. Telecom says in making its submission it is not suggesting that anyone who has signed the section 100 order would intentionally breach its terms.

Telecom also argues 2 Degrees has more to gain from the dilution of confidentiality than Telecom or Vodafone.

It appears most concern about confidentiality revolves around data rather than about interconnection terms. However, the Commerce Commission intended to make a final decision about the confidentiality status of the the 2 Degrees/Vodafone agreement by 7 August. That appears to have been at least in part pre-empted by the leak that led to NBR's story earlier today.

The commission also notes that even restricted information is only available only to people who have signed a deed of undertaking, and may only be used for the purposes of the investigation.

Parties signing the deed of undertaking, the Commerce Commission says in its letter, acknowledge a breach is a criminal offence under section 100 (4) of the Commerce Act.

The next question is whether that applies to media publishing or republishing that information.

Section 100 (4) says: "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."

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