Facebook Inc v Australian Information Commissioner & Anor

This matter concerned an application for special leave to appeal to the High Court of Australia. The applicant, Facebook Inc, sought to appeal a decision of the Full Federal Court concerning whether it carried on business in Australia. The Australian Information Commissioner was the first respondent, and Facebook Ireland Limited was the second respondent.

The central legal issue before the High Court was whether the Full Federal Court had erred in finding that there was a prima facie case that Facebook Inc carried on business in Australia. This involved a determination of the correct interpretation of the phrase "carries on business in Australia" within the relevant legislative framework, and whether the activities of Facebook Inc, as found by the lower courts, met this threshold. A related issue concerned the evidentiary basis for such a finding, particularly regarding the operation and effect of cookies.

Facebook Inc argued that the Full Federal Court's reasoning, particularly the interpretation of "carrying on business" as articulated by Justice Perram, was erroneous. It contended that the established meaning of carrying on business required a commercial dealing or transaction within the jurisdiction, which it argued was absent in its relationship with Australian users, despite certain activities occurring in Australia. The Commissioner, conversely, submitted that the Full Federal Court's decision was factually driven and that the applicant was left with a complaint about the existence of a prima facie case, which lacked general significance. The Commissioner also argued that the applicant had accepted the test for a prima facie case in prior proceedings.

The High Court granted special leave to appeal.