The High Court has refused to hear a challenge from Facebook, which argued it should not face prosecution for an alleged privacy breach that may have affected hundreds of thousands of Australians.
The social media giant's lawyers appeared before the court this morning to argue it was not responsible for the impact of the Cambridge Analytica scandal on its Australian users.
Australia's privacy watchdog is seeking to prosecute Facebook for providing allegedly unlawful access to the personal data of almost 90 milllion Facebook users worldwide — including some Australians — almost a decade ago.
In 2014, British political consulting firm Cambridge Analytica helped develop software that went on to collect data from Facebook users without their knowledge or consent.
The software — a personality quiz — not only pull information from those who used it, but also gathered data from anyone who was connected to those users on Facebook.
In Australia, 53 people logged in to the online quiz, which is estimated to have exposed the data of up to 300,000 other Australians.
Cambridge Analytica later used this vast database to create psychological profiles and to target political messages during Donald Trump's 2016 United States presidential election campaign.
The Australian Information Commissioner (AIC) alleges that Facebook breached Australian privacy laws between March 12, 2014 and May 1, 2015.
Facebook had applied to the High Court to dismiss that case, arguing it should not face prosecution in this country because, at that time, it did not conduct a business within Australia, and had no personnel or premises.
That changed in 2018 — well after the alleged breaches — when the business established an Australian presence.
Facebook's argument 'irrelevant' after law change
Barrister Noel Hutley, representing Facebook this morning, said a two-year inquiry had not found any evidence of a local business.
"There was not a jot of evidence about a commercial contract in Australia," he said.
However, Federal Court rules on serving cases against overseas entities changed in January this year.
Commonwealth Solicitor-General Stephen Donaghue told the court that, as a result of that rule change, the AIC would likely re-serve its case against Facebook regardless of any High Court decision.
As such, Facebook's challenge would have no ongoing relevance, Mr Donaghue said.
He also suggested the High Court was being asked to set boundaries on limited evidence.
The privacy case "can't be answered in the abstract", Mr Donaghue said.
The High Court bench unanimously agreed to revoke the special leave it granted to Facebook last year.
The case will now return to the Federal Court.
Late last year, Facebook's owner Meta agreed to pay $US725 million (about $1 billion) to settle a class-action lawsuit that accused it of giving its users' data to third parties like Cambridge Analytica.
