What Does it Mean to 'Carry on Business in Australia'? An Analysis of the Full Federal Court Decision in Facebook Inc v Australian Information Commissioner
Australian Bar Review, Vol. 52, No. 3, 2023, pp. 335-360
22 Pages Posted: 5 Apr 2023
Date Written: February 23, 2023
Abstract
The test of whether an entity is carrying on business in Australia is an important threshold for the application of many Australian laws. The meaning of this test in the context of the application of the Privacy Act 1988 (Cth) to a multinational corporation that operates an internet-based business has recently been considered by the Full Federal Court of Australia in Facebook Inc v Australian Information Commissioner. The authors analyse the case, evaluate its merits and identify several important implications. The implications include: (1) the court was able to find a prima facie case that Facebook Inc carried on business in Australia even though the company did not have a physical presence in Australia and the traditional indicia used by courts, such as whether there are employees and a fixed place of business, were absent; (2) the judgments show that in answering the question whether a company such as Facebook Inc is carrying on business in Australia it is a mistake to focus on the technological steps involved in modern business activity instead of viewing digital-based activities within the broader context of the relevant business; and (3) the decision has the benefit that multinational internet-based businesses are placed on the same footing, in relation to the application of national laws, as other types of multinational businesses.
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