Australian Information Commissioner v Facebook Inc (No 2)

The Australian Information Commissioner sought to bring proceedings against Facebook Inc for alleged breaches of the Privacy Act 1988 (Cth). The Commissioner applied to serve Facebook Inc out of the jurisdiction in the United States under r 13.01 of the Federal Court Rules 2011 (Cth). The Commissioner argued that Facebook Inc had an "Australian link" pursuant to s 5B(3) of the Privacy Act, which is a requirement for the extra-territorial application of the Act. Facebook Inc applied to set aside the service and discharge the leave to serve. The court was required to determine whether the Commissioner had established a prima facie case that Facebook Inc had an Australian link under s 5B(3) of the Privacy Act.

The court found that the Commissioner had established a prima facie case that Facebook Inc carried on business in Australia. The court found that the installation, operation and removal of cookies, and the provision of the Graph API, by Facebook Inc in Australia satisfied the requirement of carrying on business in Australia. The court also found that the Commissioner had established a prima facie case that Facebook Inc collected or held personal information in Australia. The court found that the collection of personal information by Facebook Inc in Australia satisfied the requirement of collecting or holding personal information in Australia. The court concluded that the Commissioner had established a prima facie case that Facebook Inc had an Australian link under s 5B(3) of the Privacy Act.

The court dismissed the interlocutory application by Facebook Inc to set aside the service and discharge the leave to serve. The court found that the Commissioner had established a prima facie case that Facebook Inc had an Australian link under s 5B(3) of the Privacy Act. The court found that the Commissioner was entitled to bring proceedings against Facebook Inc for alleged breaches of the Privacy Act. The court ordered that the interlocutory application be dismissed, that the written reasons for judgment not be published beyond the parties until further order, that the parties have until 12 pm on 16 September 2020 to advise the Court of any orders for redactions sought,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 those redactions ought be made, and that unless any party applied within 7 days for a different order with respect to costs, the first respondent pay the applicant’s costs of the interlocutory application.