The Telecommunications (Interception and Access) Act 1979 (Cth)
(as amended in 2015) (TIAA) requires that Australian
telecommunication companies retain specific data for a period of at
least two years. The purpose of the TIAA is to permit access to
retained data by Australian law enforcement and security agencies
to assist in national security and serious criminal
Whilst it is not uncommon for a party in civil proceedings to
request a subpoena to compel a Service Provider (SP) to produce
documents relating to telephone or internet communications,
amendments to the TIAA due to come into effect in April of this
year will restrict access of data by subpoena where that data was
retained by a SP to soley comply with the ITAA, provided no
The Federal Attorney-General's department has recently
invited submissions to widen the application of the TIAA to allow
access to retained data in civil litigation. The Australian
Government's reasons for this expansion are not immediately
apparent as apart from copyright right holders, there appears to be
limited support for the proposal when weighed against the
compromise to personal privacy.
What Data is Retained under the TIAA?
Retained data under the TIAA includes information such as:
a person's name, address, contact information and device
the source and destination of a communication including a phone
number, email address or IP address;
the duration and time of a communication or a session of data
the location where the communication took place.
Access to Retained Data for Civil Litigation
Despite not including content of a communication, such as the
data transfer or web history, the retained data is by no means
minimal and its significance to civil litigation ought not to be
underestimated. Such data may and often can substantially assist a
litigant to prove elements of their case, and would have wide
application matters where defamation or breach of copyright is
One example which highlights the significance of retained data
is the case of Dallas Buyers Club, where a single judge of the
Federal Court of Australia found that section 280 of the TIAA
authorised an SPs to disclose identifying information of 5000 ISP
holders if ordered by a Court. However, the Court was reluctant to
order the unconditional release of the identifying information and
granted a stay until Dallas Buyer Club LLC satisfied the Court that
the contents of a letter to ISP holders was appropriate. Although
that litigation appears to have been abandoned by Dallas Buyers
Club LLC, given that it was prevented from engaging in speculative
invoicing, it shows that Australian Courts can appreciate the
ramifications of allowing unrestricted access to vast quantities of
otherwise sensitive data.
Further Consultation Needed
It is widely considered that access to retained data, in future
civil litigation, may allow aggressive litigators of copyright
infringement to commence "fishing expeditions". Other
consequences include that otherwise confidential communications,
such as lawyer/client and journalist/source could be
Given the significance of the proposal to water down the
prohibition of access to retained data in civil litigation, a
longer period of consultation should take place, as the impact of
that decision will likely only become apparent when the regime is
formally reviewed in 2019.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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