Long-Arm Jurisdiction over Foreign Tech Companies “Carrying on Business” Online: Facebook Inc v Australian Information Commissioner

Abstract

In Facebook Inc v Australian Information Commissioner, the High Court of Australia will consider whether the American parent company behind the social media platform is amenable to the Federal Court of Australia’s jurisdiction in proceedings brought in the wake of the Cambridge Analytica data privacy scandal. The central issue is whether Facebook Inc ‘carries on business’ in Australia so as to be within the extraterritorial reach of the Privacy Act 1988 (Cth). I argue that it does. Although traditional indicia for ‘carrying on a business’ may be absent in Facebook Inc’s operations as relevant to this case, the assessment should be approached having regard to the limitations of territorial thinking for analysis of digital subject matter. A purposive construction of the Privacy Act favours this analysis. I argue that the Federal Court was warranted in finding that the Commissioner had established a prima facie case sufficient to justify the Court’s exercise of its long-arm jurisdiction.