Proceedings against social media giant Facebook demonstrate that the jurisdiction of the Office of the Australian Information Commissioner (OAIC) extends even to companies located predominantly outside of Australia.
Current state of play
On 9 March 2020, the OAIC commenced proceedings against Facebook Inc and Facebook Ireland (together, Facebook) in the Australian Federal Court, alleging "serious or repeated interferences with the privacy of an individual" in contravention of section 13G of the Privacy Act 1988 (Cth).
The OAIC's proceedings relate to the Cambridge Analytica data breach scandal and Facebook's disclosure of the personal information of over 300,000 Australian Facebook users to British firm Cambridge Analytica.
Since 2020, Facebook has challenged the OAIC's jurisdiction and the service of documents on Facebook Inc. In 2022, Facebook was granted special leave to appeal to the High Court of Australia to determine whether the OAIC has jurisdiction to serve Facebook Inc legal documents in the United States of America.
On 7 March 2023 the High Court's decision granting Facebook special leave to appeal was revoked by the Full Court of the High Court of Australia following legislative changes to the Federal Court Rules 2011 (FCR) regarding overseas service requirements (Division 10.4) on the basis grounds of appeal were "no longer of public importance1".
Key takeaways
- As Facebook has been unable to set aside the service of the OAIC's application on Facebook Inc, the proceedings will return to the Federal Court to determine the substantive issues against Facebook Inc and Facebook Ireland.
- Following the FCR amendments, the requirements for serving documents in Federal Court proceedings on companies outside the Australian jurisdiction have become less onerous. For example, leave is no longer required for service where direct jurisdiction can be established (rule 10.42). This basis for jurisdiction over subject matter can be provided for by rule 10.42(j). Leave can also be requested from the Court (rule 10.43).
- Ultimately, companies should be aware that even where they are predominantly located outside of Australia, the OAIC may nevertheless be able to commence proceedings in the Federal Court by relying on the amended rules regarding overseas service.
Return to Privacy: Mid-year review 2023
1 Facebook Inc v Australian Information Commissioner & Anor [2023] HCATrans 22 (7 March 2023)
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