7 March 2023
The Office of the Australian Information Commissioner (OAIC) today welcomed the Full Court of the High Court of Australia’s decision to revoke Facebook Inc’s special leave to appeal to the High Court.
The High Court granted the Commissioner’s application to revoke special leave due to a change in the Federal Court Rules in relation to overseas service.
This clears the way for proceedings to return to the Federal Court. The substantive proceeding seeking civil penalties against Facebook Ireland and Facebook Inc over the Cambridge Analytica matter will now progress.
“Today’s decision is an important step in ensuring that global digital platforms can be held to account when handling the personal information of Australians,” Australian Information Commissioner and Privacy Commissioner Angelene Falk said.
“Entities operating in Australia are accountable for breaches of Australian privacy law, and must ensure that their operations in Australia comply with that law,” Commissioner Falk said.
On 9 March 2020, the Commissioner lodged proceedings against US-based Facebook Inc and Facebook Ireland (collectively, Facebook) in the Federal Court, alleging the social media platform had committed serious and/or repeated interferences with privacy in contravention of Australian privacy law.
The Commissioner alleges that from 12 March 2014 to 1 May 2015:
- Facebook disclosed the personal information of Australian Facebook users to the This Is Your Digital Life app (the app) in breach of Australian Privacy Principle (APP) 6. Most of those users did not install the app themselves, and their personal information was disclosed via their friends’ use of the app.
- Facebook did not take reasonable steps during this period to protect its users’ personal information from unauthorised disclosure, in breach of APP 11.
- As a result, Australians’ information was exposed to the risk of being disclosed to Cambridge Analytica and used for political purposes.
On 25 September 2020, Facebook Inc applied for leave to appeal the Court’s interlocutory decision dated 14 September 2020 (regarding service of legal documents on the US-based entity) to the full Federal Court.
In the 14 September 2020 decision, Justice Thawley was satisfied that the Commissioner had established a prima facie case that Facebook Inc was carrying on business in Australia, and was collecting and holding personal information in Australia at the relevant time, pursuant to s 5B(3) of the Privacy Act 1988.
Facebook Inc appealed the 14 September 2020 decision, and on 7 February 2022, the Full Federal Court dismissed Facebook Inc’s appeal.
Facebook Inc sought, and on 16 September 2022 was granted, special leave to appeal to the High Court of Australia in relation to the Full Federal Court’s decision.
After a change to the Federal Court Rules 2011, which came into effect in January 2023, the Commissioner applied to revoke the grant of special leave to Facebook Inc.
On 7 March 2023, the High Court granted the Commissioner’s application to revoke the grant of special leave. This was on the basis that the matter no longer raised an issue of public importance. Costs were awarded to the Commissioner.
As a result of the decision, Facebook Inc has been unsuccessful in setting aside the service of the Commissioner’s application. The proceeding will return to the Federal Court and the substantive proceeding seeking civil penalties against Facebook Ireland and Facebook Inc will now progress.