Australian Information Commissioner v Facebook Inc (No 2) [2020] FCA 1307

Australian Information Commissioner v Facebook Inc (No 2) [2020] FCA 1307

The applicant established a prima facie case that Facebook Inc carried on business in Australia and collected or held personal information in Australia within the meaning of s 5B(3) of the Privacy Act. This was based on its direct activities (including data processing, installing and operating cookies on Australian devices, using caching servers, and managing the Graph API) which were sufficient to warrant jurisdiction at the interlocutory stage. Therefore, the application to set aside service and discharge leave was dismissed.

Jurisdiction
Australia
Judgment Date
14 September 2020
Procedural Posture
Application to Set Aside Service/discharge Leave to Serve Out of Jurisdiction / Interlocutory; Motion to Set Aside Service and Discharge Leave
Outcome
Application dismissed
Legal Topics
['service Outside Jurisdiction' 'prima Facie Case' 'extra Territorial Application of Privacy Act' 'carrying on Business in Australia' 'collection or Holding of Personal Information']
['privacy Law' 'practice and Procedure'] ['service Outside Jurisdiction' 'prima Facie Case' 'extra Territorial Application of Privacy Act' 'carrying on Business in Australia' 'collection or Holding of Personal Information']

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Procedural Posture

Application to Set Aside Service/discharge Leave to Serve Out of Jurisdiction / Interlocutory; Motion to Set Aside Service and Discharge Leave

Legal Issues

  1. 1 ["Whether there is a prima facie case that Facebook Inc had an 'Australian link' pursuant to s 5B(3) of the Privacy Act 1988 (Cth)" 'Whether Facebook Inc carried on business in Australia within the meaning of s 5B(3)(b)' 'Whether Facebook Inc collected or held personal information in Australia within the meaning of s 5B(3)(c)' 'Whether earlier orders for service out of jurisdiction should be set aside under r 13.01']

Ratio Decidendi

The applicant established a prima facie case that Facebook Inc carried on business in Australia and collected or held personal information in Australia within the meaning of s 5B(3) of the Privacy Act. This was based on its direct activities (including data processing, installing and operating cookies on Australian devices, using caching servers, and managing the Graph API) which were sufficient to warrant jurisdiction at the interlocutory stage. Therefore, the application to set aside service and discharge leave was dismissed.

Court Disposition

Application dismissed

Orders

  • ['The interlocutory application dated 6 May 2020 is dismissed.' 'The written reasons for judgment not be published beyond the parties until further order.' 'The parties have until 12 pm on 16 September 2020 to advise the Court of any orders for redactions sought, together with a concise written explanation as to why...