In the latest instalment of the Ben Grubb privacy case with
Telstra, the matter has now been elevated to the Federal Court to
consider, leaving the issue of whether metadata constitutes
"personal information" for privacy law purposes
By way of background, in August 2013 Mr Grubb requested access
to the personal metadata held about him by Telstra in relation to
his mobile phone. Telstra refused to provide Mr Grubb with metadata
on the basis that the metadata generated from his mobile phone
usage was not "personal information", given that his
identity could not be reasonably ascertained from it.
Subsequently Mr Grubb lodged a complaint with the Privacy
Commissioner (Commissioner) and the issue of
whether metadata is considered "personal information"
under the Privacy Act 1988 (Cth) (Privacy
Act) was brought to a head.
The Commissioner handed down his decision in May 2015 confirming
that metadata can be personal information, and the Australian
Privacy Principles apply to it. The Commissioner determined that
Telstra's data could be read in conjunction with other data it
held which had the potential to ultimately determine a
It was held by the Commissioner that Telstra's refusal to
provide Mr Grubb with access to his personal metadata constituted
an interference with Mr Grubb's privacy, in breach of the
Telstra then contested the Commissioner's decision, in an
appeal to the Administrative Appeals Tribunal of Australia
(Tribunal). In December 2015 the Tribunal set
aside the Commissioner's determination. The Tribunal found that
much of the metadata in question was not about Mr Grubb's
mobile phone usage, and therefore was not "personal
information" under the Privacy Act. It was instead considered
to be merely information relating to Telstra's mobile phone
services, and accordingly, the Tribunal found that Telstra was not
As a result, Telstra was able to maintain its position in not
providing Mr Grubb with the requested metadata.
However, in January 2016, following a consideration of the
Tribunal's decision, the Commissioner filed a Notice of Appeal
from the Tribunal to the Federal Court of Australia.
So for the moment, the final position is still uncertain, while
we await the Federal Court's consideration of the issues.
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