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 uncertain.
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 customer's identity.
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 Privacy Act.
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 in breach.
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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