In the ever-evolving landscape of data privacy, one landmark case that has cast a revealing spotlight on the intricacies of personal information and its regulation is Telstra Corporation Limited and Privacy Commissioner. The case, which unfolded in Australia, carries significant implications for understanding the concept of “personal information” and how individuals can assert their rights over their data.
The Request for Metadata
In June 2013, journalist Ben Grubb, employed by Australian media company Fairfax, requested access to all metadata associated with his mobile phone service from Telstra. This request included various data like cell tower logs, call details, text messages, data session durations, and website URLs.
Mr Grubb’s argument was that if law enforcement agencies could access such data, individuals should have the same privilege. This argument was supported by Telstra’s Transparency Report, which revealed that Telstra had received and acted upon around 85,000 requests for customer information from various entities, including law enforcement, between July 2013 and June 2014.
Defining “Personal Information”
Before 2014 under the Privacy Act personal information was defined as:
“… information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”
From 2015 Section 187LA of the Telecommunications (Interception and Access) Act 1979 expanded this definition to include data under Part 5-1A of the Act.
Telstra initially interpreted “information or opinion” broadly, encompassing all data in their database. However, the key issue was whether an individual’s identity could reasonably be determined from the requested data. It was emphasised that “apparent or can reasonably be ascertained” did not permit Telstra to refuse access based on complexity or resources, unlike the Freedom of Information Act.
Mr Grubb’s argued that data generated during his use of Telstra services, whether data or metadata, should be considered personal information as it was closely tied to his identity. This perspective raised the question of whether someone could identify Mr Grubb through detailed data analysis, illustrating the complex interplay between metadata, personal information, and individual privacy.
Metadata under Scrutiny
The term “metadata” lacks a precise legal definition but generally refers to data generated during electronic communications or online activities, excluding the actual content of the communication.
The Privacy Commissioner’s determination in the case of Telstra Corporation Limited and Privacy Commissioner  AATA 991 examined metadata and categorised it into three distinct types.
Firstly, Internet Protocol (IP) Address Information received attention, particularly its relevance to Mr Grubb’s mobile phone activities. This type of metadata, crucial in digital communication, raised questions about its potential for identifying individuals.
Secondly, the focus shifted to “URL Information,” encompassing a comprehensive record of websites visited by Mr Grubb. The debate revolved around whether this trail of visited websites could reasonably lead to the identification of an individual.
Thirdly, the examination extended to “Cell Tower Location Information,” going beyond basic billing data retained by Telstra. The inquiry centered on whether this more detailed location data could contribute to individual identification.
Telstra argued that the requested “metadata” should not be classified as personal information because it wasn’t inherently linked to Mr Grubb’s identity. Mr. Grubb contended that, at the very least, law enforcement agencies could reasonably ascertain his identity from the metadata, justifying its classification as “personal information.”
Telstra claimed that matching metadata to identify an individual would require an extensive and resource-intensive process, potentially taking several days or weeks. The Commissioner considered this process reasonable, given Telstra’s capabilities and resources, ultimately ruling that Telstra had violated the Privacy Act by not granting Mr Grubb access to his personal information.
This decision has significant implications for organisations handling personal data or any information that could reasonably identify individuals. It implies that even supposedly de-identified data may still fall under the Privacy Act, necessitating stringent compliance measures.
Implications for Data Privacy
The Ben Grubb case represents a significant shift in the definition of “personal information.” It emphasises that even data requiring substantial effort to link to an individual should be considered “personal information” under privacy laws.
This legal precedent carefully balances transparency and the privacy of third parties. While individuals have the right to access their data, organisations must also protect the privacy of individuals indirectly associated with the requested information.
The case highlights that privacy is a dynamic concept that evolves to address the challenges and opportunities presented by advancing technology.
2017 Ruling and its Impact on ‘Personal Information’ in Australia
Privacy Commissioner v Telstra Corporation Limited  distinguishes between information that identifies a person and information that is “about” an individual, departing from the conventional belief that any identifying information is automatically “about” that person.
Notably, the court asserts that both identification and the data being “about” the individual are necessary criteria. However, the case leaves the precise boundaries of what constitutes being “about an individual” unclear, emphasising that this determination relies on a contextual, case-specific assessment.
This ruling does not impact personal information held by telecommunications providers, as laws from 2015 clearly categorise such data as personal information. This decision highlights the importance of evaluating individual cases to determine whether certain information qualifies as “personal information” under the Privacy Act.
The Ben Grubb case established that even data requiring significant effort to link to an individual should be considered “personal information” under privacy laws. This interpretation recognises the potential for data to reveal identities and patterns, emphasising the importance of protecting individuals’ privacy rights.
The 2017 ruling introduced a two-stage test for defining “personal information,” requiring both identification and relevance to the individual. While it introduced some ambiguity, organisations are likely to interpret it broadly to comply with privacy laws.
Overall, these cases emphasise the balance between transparency, individual privacy, and ethical considerations in the digital age. They highlight that privacy laws are dynamic and must adapt to the complexities of modern data handling practices.