On 19.01.2017, in the case of Privacy Commissioner v Telstra Corporation Limited \u2013 [2017] FCAFC 4 \u2013 the Australian Supreme Court has interpreted the definition of \u201cpersonal
\n information\u201d in the National Privacy Principles (\u201cNPP\u201d) by requiring \u201cpersonal information\u201d to be \u201cabout the individual\u201d. The NPP were set out in the Privacy Act 1988 (Cth) (\u201cPrivacy
\n Act\u201d), and regulated how certain private organisations can handle, use and manage personal information. The NPP have since been replaced by the Australian Privacy Principles (APP). The use of the legal test to determine what amounts to \u201cpersonal information\u201d potentially has the impact of excluding \u201cmetadata\u201d held by private
\n organisations as information that could be protected by the APP.<\/p>\n
\n The Privacy Commission v Telstra case commenced with a request by a journalist to access information held about him by his telecommunications provider Telstra. According
\n to NPP 6.1, which was used by the journalist as the basis for his request to access the information, individuals have the right to access, and correct their personal information
\n held by private organisations. Part of the reason for the journalist\u2019s request was to demonstrate an individual’s capacity to access personal information in comparison to, e.g.
\n governmental private organisations.<\/p>\n
\n Telstra denied the journalist\u2019s request partially; it did not provide information relating to mobile phone network data (IP addresses, uniform resource locator information,
\n information on cell tower locations, and inbound call numbers and location information). Telstra was of the opinion that it did not have an obligation to disclose this information
\n because it was not \u201cabout the individual\u201d, and therefore, did not qualify as \u201cpersonal information\u201d according to the NPP.<\/p>\n
\n The Supreme Court agreed with Telstra\u2019s argument. According to the Court\u2019s definition of \u201cpersonal information\u201d in the Privacy Act it is required that the information is \u201cabout the
\n relevant applicant\u201d and that \u201cthe applicant\u2019s identity is apparent or could reasonably be ascertained from the information\u201d. The Court points out that not all information which is
\n held by an organisation and from which the identity of an applicant is apparent or could reasonably be ascertained qualifies as information \u201cabout\u201d the applicant. Rather, the Court stated that the information requested needs to have the individual as its subject matter.<\/p>\n
\n Although, the case discusses metadata, the Court did not explore the issue of whether metadata is covered by the definition of \u201cpersonal information\u201d. Rather, the Court focussed
\n on whether the information was \u201cabout an individual\u201d. However, by requiring the information to have the individual as its subject matter, the Court limited the possibility of metadata to be considered \u201cpersonal information\u201d. Thereby, the Court ignores the possibility, for example, of data linking and data matching of information held by an entity, which may allow the identity of an individual to be ascertained, despite the information’s subject matter.<\/p>\n
\n The judgment of the Australian Supreme Court from 19.01.2017 \u2013 [2017] FCAFC 4 \u2013 is available at:<\/p>\n
http:\/\/www.judgments.fedcourt.gov.au\/judgments\/Judgments\/fca\/full\/2017\/2017fca
\n fc0004
\n Author Kristine Biason, lawyer at Legal Vision in Surry Hills, New South Wales\/Australia<\/p>\n
priminarily published in the EMR-Newsletter 05\/2017<\/p>\n","protected":false},"excerpt":{"rendered":"
On 19.01.2017, in the case of Privacy Commissioner v Telstra Corporation Limited \u2013 [2017] FCAFC 4 \u2013 the Australian Supreme Court has interpreted the definition of \u201cpersonal information\u201d in the National Privacy Principles (\u201cNPP\u201d) by requiring \u201cpersonal information\u201d to be \u201cabout the individual\u201d. The NPP were set out in the Privacy Act 1988 (Cth) (\u201cPrivacy […]<\/p>\n","protected":false},"author":1,"featured_media":2934,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","footnotes":""},"categories":[3,1,23,27],"tags":[260,253],"class_list":["post-2933","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-aktuelle-meldung","category-aktuelles","category-datenschutz","category-telekommunikation","tag-australien","tag-emr-newsletter","et-has-post-format-content","et_post_format-et-post-format-standard"],"translation":{"provider":"WPGlobus","version":"3.0.2","language":"gb","enabled_languages":["de","fr","gb"],"languages":{"de":{"title":true,"content":true,"excerpt":false},"fr":{"title":false,"content":false,"excerpt":false},"gb":{"title":false,"content":true,"excerpt":false}}},"_links":{"self":[{"href":"https:\/\/emr-sb.de\/gb\/wp-json\/wp\/v2\/posts\/2933","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/emr-sb.de\/gb\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/emr-sb.de\/gb\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/emr-sb.de\/gb\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/emr-sb.de\/gb\/wp-json\/wp\/v2\/comments?post=2933"}],"version-history":[{"count":4,"href":"https:\/\/emr-sb.de\/gb\/wp-json\/wp\/v2\/posts\/2933\/revisions"}],"predecessor-version":[{"id":2975,"href":"https:\/\/emr-sb.de\/gb\/wp-json\/wp\/v2\/posts\/2933\/revisions\/2975"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/emr-sb.de\/gb\/wp-json\/wp\/v2\/media\/2934"}],"wp:attachment":[{"href":"https:\/\/emr-sb.de\/gb\/wp-json\/wp\/v2\/media?parent=2933"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/emr-sb.de\/gb\/wp-json\/wp\/v2\/categories?post=2933"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/emr-sb.de\/gb\/wp-json\/wp\/v2\/tags?post=2933"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}