Facebook is claiming it does not conduct business in Australia and does not collect and hold data in the country in its effort to avoid liability over the Cambridge Analytica scandal.
Last year, the privacy commissioner took Facebook to court over an alleged mass privacy breach involving the use of Australians’ Facebook data in a vote-influencing operation involving Cambridge Analytica, a company that assisted the Trump campaign and was then headed by Trump’s key adviser Steve Bannon.
The court action came two years after revelations in the Guardian and Observer that 50m Facebook users worldwide had their names, dates of birth, emails, city locations, friends lists, page likes and – in some cases – messages harvested to build powerful software that could predict and shape voter choices.
The information was gathered through a personality quiz app named “This is your digital life”, which collected the data of those who downloaded the app and their unwitting friends.
Only 53 people in Australia installed the app, according to court documents, but it was able to harvest the data of 311,127 Australians in total.
The Office of the Australian Information Commissioner has accused Facebook of serious and repeated breaches of privacy law by leaving its users exposed to having their data sold and “used for purposes including political profiling, well outside users’ expectations”.
The case was brought against Facebook Inc, based in Delaware, and Facebook Ireland, meaning that the OAIC had to convince a court it had a prima facie case that both offshore companies carried out business in Australia and may have contravened Australia’s privacy laws.
Facebook’s parent company, Facebook Inc, has repeatedly fought the suggestion it does business in Australia, and lost.
As part of its case, it argued that it does not collect or hold data on Australian users in Australia.
That argument was rejected by Justice Thomas Thawley in September, who found Facebook Inc did collect and store information in Australia, through caching servers located here and through the installation and operation of cookies on Australian devices.
Thawley also found the company conducted business in Australia by providing local app developers with what is known as the Graph Application Programming Interface – a piece of software allowing apps to request personal information from Facebook users.
Now, Facebook is seeking to appeal Thawley’s ruling to the full bench of the federal court.
Court documents show it is arguing that “substantial injustice” would be caused if it is not given leave to appeal to the court.
Facebook says the appeal examines “important questions” about how privacy laws define what it means to carry on business in Australia and “collect” or “hold” personal information.
The OAIC did not comment on Facebook’s latest appeal.
But in September, following its success in the federal court, the regulator said:
“While these matters remain to be established at trial, the court held the matters were sufficiently arguable to justify service outside of Australia and subjecting Facebook Inc to proceedings in Australia.”
Facebook was approached for comment.