Friday 27 January 2017

Personal Information and Metadata: Is the Telstra case really the most important Australian Privacy case to date? We're not so sure.

The Full Federal Court has taken a narrower view of 'personal information' under Commonwealth privacy law than the view preferred by the Australian Privacy Commissioner. However, the decision does not necessarily narrow the statutory definition.

The case related to a journalist's request to Telstra for metadata regarding his mobile phone. The Full Court disagreed with the Commissioner's appeal and confirmed that personal information must be 'about' an individual, and not only information from which the individual's identity could be reasonably ascertained.

The Court expressed doubts about the usefulness of the orders that the Commissioner wanted, and noted that applications by non-parties to make submissions relied on overseas laws with different wording, and appeared to raise issues that went beyond the point being appealed.

While a high level of attention has been given to the case, some commentary has not been substantiated in the decision itself. The case is likely to have limited impact on how the Victorian definition of 'personal information' is interpreted, and might have limited impact more generally because the decision itself is a narrow one. The Full Court did not decide whether the 'metadata' requested in that case was personal information, or rule on hypothetical examples or criteria to assess whether it was. Rather, it confirmed an evaluation will still be necessary in each case based on the facts and circumstances. This includes whether an item of information might be 'about' a person when considered along with other information. Also, the definition of 'personal information' in Commonwealth privacy law has changed since the time the decision relates to.

If you'd like to discuss any of the issues raised by this decision please call James Stephens or Snezana Stojanoska.

James Stephens
Principal Solicitor
03 9947 1422

Snezana Stojanoska
03 9947 1412

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