If you believe that Grubb's case resolved the question of
what information collected by telecommunications service providers
is 'personal information' for the purposes of the
Privacy Act 1988 (Cth) (Privacy Act), you
should think again.
Mr Grubb, a Telstra customer, asked Telstra to provide him with
'all the metadata information Telstra has stored about my
mobile phone service'. Mr Grubb filed a complaint with the
Office of the Australian Information Commissioner when Telstra did
not provide all of this information. The Privacy Commissioner found
that Telstra had breached the National Privacy Principles. Telstra
successfully applied to the Administrative Appeals Tribunal and the
Commissioner then appealed to the Federal Court.
Telstra was again successful in the Federal Court (Privacy
Commissioner v Telstra Corporation Limited  FCAFC 4).
The narrow issue considered by the Federal Court was the meaning of
'personal information' as defined in the Privacy Act at the
time Mr Grubb made his original request (July 2013). In other
words, the issue was whether the withheld metadata was information
or an opinion about an individual (Mr Grubb) whose identity is
apparent, or could reasonably be ascertained, from the information
or opinion. In a decision handed down in January 2017, the Federal
Court found that to fall within the definition, the personal
information held by the relevant entity must satisfy two criteria.
First, it needed to be about an individual and secondly, the
identity of that individual would need to be apparent or
ascertainable from the information or opinion. The Privacy
Commissioner fell at the first hurdle as he did not seek to
establish that the relevant information, being mobile network data,
was about Mr Grubb.
But this is not the end of the matter. 'Personal
information' is, as acknowledged by the Federal Court, a broad
concept and whether information or an opinion is 'about' an
individual requires an evaluative conclusion on a case by case
basis. The type of information or opinions falling within the
definition may also be impacted by other Commonwealth legislation,
such as section 187LA of the Telecommunications (Interception
and Access) Act 1979 (Cth).
This publication does not deal with every important topic or
change in law and is not intended to be relied upon as a substitute
for legal or other advice that may be relevant to the reader's
specific circumstances. If you have found this publication of
interest and would like to know more or wish to obtain legal advice
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