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Civil lawsuits safe from mandatorily retained metadata

Civil lawsuits safe from mandatorily retained metadata

The verdict is in: retained metadata can’t be used in civil litigation.

The verdict is in: retained metadata can’t be used in civil litigation.

The Federal Government announced on 13 April that it had made its decision on whether it should open up mandatorily retained telecommunications metadata to be used in civil lawsuits.

The government said that the existing restrictions on civil litigants accessing telecommunications data retained solely under its mandatory data retention legislation will stay in place.

The decision means that content rights holders, such as Village Roadshow or Foxtel, will not be able to rely on mandatorily retained metadata in legal proceedings against Australian copyright infringers.

The decision follows a review conducted by the Attorney-General’s Department and the Department of Communications and the Arts, which found that there was “insufficient reason to justify making exceptions to the restrictions imposed by the data retention legislation”.

In December, the government called for industry feedback on proposals to allow retained metadata to be used in civil cases.

The review received over 260 submissions from individuals and organisations, and considered the use of telecommunications data in the civil justice system, privacy of communications and the regulatory burden on the telecommunications industry.

At the time, Internet Australia slammed the government's move to call for submissions over the Christmas period for what the internet user peak body called a "radical expansion of its controversial data retention scheme".

However, the government has since denied the allegation and defended the review.

“The conduct of the review was a recommendation of the Parliamentary Joint Committee of Intelligence and Security. It is incorrect to say, as some have falsely asserted, that the review was conducted for the purposes of weakening existing restrictions,” Attorney-General, George Brandis, and Communications Minister, Mitch Fifield, said in a joint statement.

The government’s decision to deny the use of mandatorily retained metadata in civil legal cases coincides with the end of the data retention implementation period, which has seen members of the Australian telco industry call on the government to exercise “regulatory restraint” as compliance for the scheme comes into effect.

According to telco industry body, the Communications Alliance, the complexity of the compliance task involved, combined with delays by the Federal Government in distributing grants to subsidise the cost of new systems, has left some service providers facing challenges in meeting the compliance deadline, 13 April.

“The resulting timeframe put many service providers under immense pressure to complete the work to enable them to comply with this onerous regime within the deadline,” Communications Alliance CEO, John Stanton, said.

This is despite the government handing out $128.4 million of public funding to 180 ISPs around the country to help out with the costs associated with the mandatory data retention scheme.

The Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015, which was passed by Parliament in March 2015, compels Australian telcos and ISPs to store users’ non-content telecommunications data (metadata) for a minimum period of two years.


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