Since I commenced the Crypto Class Action against Facebook (Meta) and Google, a number of Australian appeal Court decisions in other cases have gone my way, establishing very helpful precedents which make my case stronger.
These include:
- the Epic vs Apple Full Court Appeal, which established that competition law cases of broad impact on Australian consumers have a special public interest status, that protects against attempts to block them being heard on the merits by the Federal Court of Australia;
- the BHP Group Limited v Impiombato High Court Appeal which confirmed that foreign residents can be group members in Australian class actions; and
- the Australian Information Commissioner (AICC) vs Facebook Full Court Appeal, which established that Facebook Inc. (the US parent company) was doing business in Australia and thus subject to Australian law, even when the contracting party with Australian resident users was Facebook Ireland.
Facebook's High Court Appeal on doing business in Australia
Facebook Inc. sought to appeal this later decision to the High Court of Australia and were granted special leave to appeal in mid-September 2022.
The arguments at first instance (two judgments, one ex parte and one contested) and on appeal revolved around complex and somewhat obscure IT technical questions regarding Facebook Inc. storing cookies on Australian users phones, providing an API to Australian developers and use of caching servers in Australia.
Now while I know that there are many devs and tech nerds on Hive who are fascinated by such technical minutiae, most people (including lawyers) find them difficult and tedious.
A better argument?
In preparing my arguments in the Crypto Class Action on the same issue - whether Facebook Inc. was doing business in Australia - I realised that there is a much simpler and more powerful argument.
Facebook's terms and conditions says that Facebook Inc. is the contracting party for US and Canadian residents and Facebook Ireland is for everybody else.
But what about North American visitors to Australia? They are US or Canadian residents so have a contract with Facebook Inc, yet they are in Australia Facebooking away with pics of the Sydney Opera House, kangaroos and koalas and being served ads suitable to their travels.
This is Facebook Inc. directly doing business, conducting large number of transactions generating ad revenue in Australia.
For some reason, the AICC didn't make this argument in any of the hearings on this topic.
I brought it to their lawyer's attention in August 2020, but this was after the AICC had filed their evidence in the second (contested) first instance hearing on the issue.
Lack of Evidence?
Now that this important question has reached the High Court, I though it was time to re-look at the issue.
While appeal Courts cannot normally consider new evidence and the AICC appears not to have filed any evidence on North American visitors to Australia and their Facebook usage, where certain facts are a matter of common knowledge that is not reasonably open to question, the Courts can take judicial notice of such facts, without evidence needing to be filed. This is codified in s 144 of the Evidence Act 1995 (Cth).
The fact that US and Canadians visit Australia in large numbers (except during Australia's COVID self-isolation) is a fact that a Court can take judicial notice of.
So is the fact that Facebook usage is so widespread and pervasive that a reasonable percentage of such visitors use the Facebook platform while they are in Australia.
These facts can also be easily verified by reference to documents the authority of which cannot reasonably be questioned (like official statistics on visitor entries to Australia and Facebook Annual Reports). This is another ground for judicial notice under s 144 of the Evidence Act 1995 (Cth).
Time for an intervention?
After reviewing the above legal situation, I decided that there was a good legal basis for bringing this issue to the attention of the High Court.
Because the Judgment which found I had a prima facie case and gave me leave to serve applied the judgment under challenge in the High Court, I have an interest in the High Court proceedings and can claim the status of an intervener.
In less than 24 hours I researched the legal issues on judicial notice and intervening in a High Court case and filed these submissions:
https://www.hcourt.gov.au/assets/cases/08-Sydney/s137-2022/Facebook-AIC_PropInt.pdf
Let me know what you think.
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