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Privacy Commissioner v Telstra Corporation Limited Federal Court decision

Update on the Federal Court decision

20 February 2017

On 19 January, the Federal Court of Australia published its decision in the matter of Privacy Commissioner v Telstra.[1]

I welcome the Court’s decision as it provides important guidance as to what is ‘personal information’ in the terms of the Privacy Act 1988.

In particular, the Court[2] has confirmed that assessing what is ‘personal information’ requires ‘an evaluative conclusion, depending on the facts of any individual case” and that ‘even if a single piece of information is not ‘about the individual’ it may be about the individual when combined with other information’.[3] This is consistent with how ‘personal information’ has been interpreted by my office.

On review of the judgment, I have therefore decided not to pursue further appeal in this matter. Obtaining clarity for business and agencies about the definition of personal information was my primary interest in the appeal.

To assist businesses and agencies further, my office is developing a more detailed resource on applying the definition of personal information, to complement the existing APP Guidelines.

Further resources

Australian Privacy Principles – Key Concepts

The Privacy Commissioner’s original determination in Ben Grubb v Telstra

The AAT’s decision on Telstra’s appeal in Telstra v Privacy Commissioner

htmlThe Privacy Commissioner’s submissions in his appeal to the Federal Court31.16 KB
          pdfPrintable PDF version100.39 KB
          docxWord DOCX version48.82 KB

The Federal Court’s decision in Privacy Commissioner v Telstra

Background

On May 1 2015 the Australian Privacy Commissioner, Timothy Pilgrim, determined that Telstra Corporation had breached National Privacy Principle 6.1 in the matter of Ben Grubb v Telstra Corporation Limited [2015] AICmr 35.

Telstra appealed the determination to the Australian Administrative Appeals Tribunal, and on 18 December 2015 the Tribunal set aside the Commissioner’s determination, substituting a finding that no breach of NPP 6.1 had occurred.

The Tribunal’s decision generated debate in privacy and legal circles about whether it contained implications for how the definition of ‘personal information’ — a key term of the Privacy Act 1988 (Privacy Act) — should be interpreted.

The Office of the Australian Information Commissioner formed the view that having ongoing uncertainty about this term would be an unreasonable situation for businesses and agencies seeking to meet their obligations under the Privacy Act, and that clarification by a court was therefore desirable.

On 14 January 2016, the Australian Privacy Commissioner filed a Notice of Appeal from a Tribunal to the Federal Court of Australia.

On 19 January 2017, following hearings and submissions, the Federal Court dismissed the appeal.


Footnotes

[1] Privacy Commisioner v Telstra Corporation Limited [2017] FCAFC 4 (19 January 2017)

[2] Kenny and Edelman JJ with Dowsett J in agreement.

[3] Op cit at [63]

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Privacy Commissioner v Telstra Corporation Limited Federal Court decision

19 January 2017

The Office of the Australian Information Commissioner notes the judgment made by the Federal Court today to dismiss our appeal of the Administrative Appeals Tribunal’s decision in Telstra Corporation Limited and Privacy Commissioner [2015] AATA 991 (18 December 2015). The OAIC is currently considering the decision and has no further comment at this time.

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