Australian Competition & Consumer Commission takes Facebook Inc to Federal Court over allegedly misleading and deceptive conduct, December 2020

 

Australian Competition & Consumer Commission, media release, 16 December 2020:

ACCC alleges Facebook misled consumers when promoting app to 'protect' users' data

The ACCC has instituted proceedings in the Federal Court against Facebook, Inc. and two of its subsidiaries for false, misleading or deceptive conduct when promoting Facebook’s Onavo Protect mobile app to Australian consumers.

Onavo Protect was a free downloadable software application providing a virtual private network (VPN) service.

The ACCC alleges that, between 1 February 2016 to October 2017, Facebook and its subsidiaries Facebook Israel Ltd and Onavo, Inc. misled Australian consumers by representing that the Onavo Protect app would keep users’ personal activity data private, protected and secret, and that the data would not be used for any purpose other than providing Onavo Protect’s products.

In fact, the ACCC alleges, Onavo Protect collected, aggregated and used significant amounts of users’ personal activity data for Facebook’s commercial benefit. This included details about Onavo Protect users’ internet and app activity, such as records of every app they accessed and the number of seconds each day they spent using those apps.

This data was used to support Facebook’s market research activities, including identifying potential future acquisition targets.

“Through Onavo Protect, Facebook was collecting and using the very detailed and valuable personal activity data of thousands of Australian consumers for its own commercial purposes, which we believe is completely contrary to the promise of protection, secrecy and privacy that was central to Facebook’s promotion of this app,” ACCC Chair Rod Sims said.

“Consumers often use VPN services because they care about their online privacy, and that is what this Facebook product claimed to offer. In fact, Onavo Protect channelled significant volumes of their personal activity data straight back to Facebook.”

“We believe that the conduct deprived Australian consumers of the opportunity to make an informed choice about the collection and use of their personal activity data by Facebook and Onavo,” Mr Sims said.

The Onavo Protect website stated that the app would “save, measure and protect” users’ mobile data, while advertisements on Facebook’s website and app included statements such as “Keep it secret. Keep it safe… Onavo Protect, from Facebook”.

The ACCC is seeking declarations and pecuniary penalties.

The attached document below contains the ACCC’s initiating court document in relation to this matter. We will not be uploading further documents in the event this initial document is subsequently amended. 

Concise statement 

ACCC v Facebook Inc & Ors_ Concise Statement ( PDF 2.34 MB ) 

Background 

US-based Facebook, Inc. owns global social media and private messaging platforms including Facebook, Instagram and WhatsApp. 

US-based Onavo, Inc. and Onavo Mobile Ltd, based in Israel, were mobile analytics companies that were acquired by Facebook in October 2013. After the acquisition Onavo Mobile became Facebook Israel Ltd. 

Apple removed Onavo Protect from its App store in 2018 for non-compliance with its developer terms such as, among other things, collecting information about other apps installed on a user’s device for the purposes of analytics. It was later also removed from the Google Play store and was discontinued in 2019. 

The ACCC’s Digital platforms inquiry final report examined a range of issues involving digital platforms and consumers, including concerns about Onavo Protect and how its users’ data was being collected and used. 

In December 2020, in an unrelated action, the US Federal Trade Commission (US FTC) brought proceedings against Facebook, alleging that the company is illegally maintaining its personal social networking monopoly through a years-long course of anticompetitive conduct. The US FTC alleges that Facebook engaged in a systematic strategy including its 2012 acquisition of Instagram and 2014 acquisition of WhatsApp, and the imposition of anticompetitive conditions on software developers to eliminate threats to its monopoly. The court documents filed by the US FTC refer to Facebook’s use of Onavo Protect data to identify future acquisitions as part of the allegation that Facebook is illegally maintaining a monopoly.

Morrison Government to settle 'robodebt' class action out of court reportedly for in excess of $1.2 billion

 

In July 2016 the Turnbull Coalition Government began to issue income compliance notices based on automated data matching to recipients of government cash transfers such as Job Seeker, Youth Allowance, Abstudy, Single Parent Payments and Family Tax Benefit payments.

At the time the then Minister for Social Social Services Scott Morrison expected to clawback an est. $1.7 billion dollars over five years from individuals who were, or had been in the past, receiving a Centrelink pension, benefit or allowance.

From its beginning this income compliance scheme was seen as flawed.

On social media and elsewhere the scheme began to be called 'robodebt' and unverified reports began to emerge of vulnerable people in receipt of large robodebts suiciding.

In February 2019 it was revealed that the Morrison Government had spent between $400m to recover just $500m from welfare recipients through the flawed 'robodebt' scheme.

By 2019 at least 570,000 of over 600,000 income compliance notices issued were considered to be unlawful. As were Australian Taxation Office garnishee notices associated with these alleged debts.

A total of 18,000 individuals who consented to automated data matching to calculate an alleged debt were also considered to have been subject to an unlawful action.

In November 2019 the Morrison Coalition Government called a halt to using automated data matching to calculate income compliance, as it was faced with at least one adverse court judgment and a forthcoming class action in the Federal Court of Australia.

On 29 May 2020 the Morrison Government announced that it now accepted that many debts raised under the 'robodebt' system were unlawful and, consequently, that it would refund 470,000 debts raised totalling $721 million to 373,000 people. This refund did not cover all members of the class action.

The class action was scheduled to go to trial on 16 November 2020.

Yesterday, Monday 16 November, came news that the class action had been settled out of court by the Morrison Government. Presumably in order that Morrison & Co. along with senior Social Security and Centrelink bureaucrats could avoid the possibility of having to give evidence in court, to avoid any legal admission of liability and, to avoid the risk of a detailed adverse judgment.

It seems that Scott Morrison's personal war on the poor and vulnerable, begun when he was Minister for Social Services and continued on during his time as Treasurer and now as Australian Prime Minister, has cost the federal government well in excess of  $1.2 billion when one factors in the federal government's legal costs and the pre-existing 'robodebt' scheme administration costs - including debt recovery agent commission payments.

Gordon Legal, media release, 16 November 2020:

Gordon Legal announces today the settlement of the Robodebt Class Action, subject to the approval of the Federal Court of Australia.

The settlement reached with the Commonwealth of Australia means that if approved by the Court, since the commencement of the Robodebt Class Action, more than $1.2 billion in financial benefit will have been provided to approximately 400,000 group members.

In settling the class action, the Commonwealth has not admitted that it was legally liable to Group Members. [my yellow highlighting]

KEY POINTS:

The total financial outcome achieved is made up as follows:

• The Commonwealth has today agreed to pay $112 million in compensation to approximately 400,000 eligible individual Group Members, including legal costs;

• The Commonwealth is repaying more than $720 million in debts collected from Group Members invalidly and will continue to provide refunds;

• The Commonwealth has agreed to drop claims for approximately $398 million in debts it had invalidly asserted against group members of the class action;

• Subject to Court Approval, a Settlement Distribution Scheme will provide that eligible individual Group Members’ entitlements will be assessed and all amounts due to them be paid in 2021.

Subject to approval by the Court, a notice setting out the details of the proposed Settlement Distribution Scheme and the Court approval process will be provided to all Group Members.

Gordon Legal Partner, Andrew Grech said:

“We want to acknowledge the courage of the lead applicants; Katherine, Elyane, Steven, Felicity, Shannon and Devon, who led these proceedings on behalf of all Robodebt victims in pursuit of this class action, which has allowed this outcome to be achieved today.

Our clients have asked us to especially thank Bill Shorten for his relentless pursuit of this issue, for his compassion over the last four years for vulnerable Australians hurt by Robodebt and for bringing the case to Gordon Legal’s attention when it seemed that all other options had been exhausted and only resorting to the legal system would help.

Once again we would like to acknowledge the work of the legal team at Victoria Legal Aid, who worked tirelessly to bring a number of individual claims before the Federal Court before the Class Action was commenced as well as the efforts of many community legal services in the Welfare Rights Network, such as Social Security Rights Victoria who have been advocating for victims of Robodebt for the last few years.

Our clients would also like us to acknowledge the Federal Court of Australia for its preparedness to schedule frequent case management hearings and to facilitate a trial of the proceedings so quickly, notwithstanding the difficult circumstances of the Melbourne Covid-19 lockdown.”

– ENDS –

For more information visit: https://gordonlegal.com.au/robodebt-class-action/robodebt-faqs/

Proof that the Morrison Government considers itself above the law

Image: ALEX ELLINGHAUSEN, The Sydney Morning Herald 

Minister for for Cities, Urban Infrastructure and Population & Liberal MP for Aston Alan Tudge (left) has been Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs since 13 December 2019.

It is to him the following Federal Court of Australia judgment refers.

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 1354 (23 September 2020), excerpts from judgment of 23 September 2020:

CONCLUSIONS

Ground 1 of the Amended Originating Application has been upheld. Notwithstanding the agreement between the parties to the Tribunal proceeding, the Tribunal erred in acting upon the agreement between the parties that the decision in BAL19 required it “to set aside the ... delegate’s decision” and that “[the] only question” to be resolved was the form of the “further order” to be made under s 43(1)(c) of the Administrative Appeals Tribunal Act.

Although the Tribunal quite properly acted upon the agreement of the parties that it was bound by BAL19, the fact remains that the Tribunal failed to give any consideration to a matter of fundamental importance to a decision as to whether to grant or refuse a protection visa – namely, the discretion conferred by s 501(1). In failing to do so, the Tribunal committed jurisdictional error.

The second Ground of review, it has tentatively been concluded has some merit.

Even if both Grounds of review were made out, however, relief should be refused in the exercise of the Court’s discretion. The Minister cannot place himself above the law and, at the same time, necessarily expect that this Court will grant discretionary relief. The Minister has acted unlawfully. His actions have unlawfully deprived a person of his liberty. His conduct exposes him to both civil and potentially criminal sanctions, not limited to a proceeding for contempt. In the absence of explanation, the Minister has engaged in conduct which can only be described as criminal. He has intentionally and without lawful authority been responsible for depriving a person of his liberty. Whether or not further proceedings are to be instituted is not a matter of present concern. The duty Judge in the present proceeding was quite correct to describe the Minister’s conduct as “disgraceful”. Such conduct by this particular Minister is, regrettably, not unprecedented: AFX17 v Minister for Home Affairs (No 4) [2020] FCA 926 at [8] to [9] per Flick J. Any deference to decisions made by Ministers by reason of their accountability to Parliament and ultimately the electorate assumes but little relevance in the present case. Ministerial “responsibility”, with respect, cannot embrace unlawful conduct intentionally engaged in by a Minister who seeks to place himself above the law. Although unlawful conduct on the part of a litigant does not necessarily dictate the refusal of relief, on the facts of the present case the Minister’s conduct warrants the refusal of relief.

It is finally concluded that there should be no order for costs. Although PDWL has succeeded in retaining the visa granted to him, that result follows not from the lack of success on the part of the Minister in establishing jurisdictional error but rather from the discretionary refusal of relief.

THE ORDERS OF THE COURT ARE:

The Amended Originating Application filed on 20 July 2020 is dismissed.

There is no order as to costs. [my yellow highlighting]

Alan Tudge should resign from the Australian Parliament with immediate effect.

However, it is highly likely he will refuse any call to do so and instead appeal this judgment.

McDonald's & Tantex Holdings spent a lot of money defending the indefensible over the last nine and a half months

Tanya Manteit-Mulcahy owns Tantex Holdings,
which runs several McDonald’s stores in Brisbane
Picture: Jono SearleSource: News Limited 26 November 2019

The Advocate, 31 August 2020:

A Queensland McDonalds franchisee has been ordered to pay $1000 in compensation to a worker denied toilet and drink breaks.

Tantex Holdings, which operates six of the fast-food restaurants, has been ordered to pay former employee Chiara Staines compensation by the Federal Court on Monday.

In its published reasons for the decisions, the court found Ms Staines had been denied a 10-minute paid drink break on all but three occasions while working at a Queen St Mall restaurant in Brisbane from May 8, 2017 to June 15, 2019.

McDonald's staff have been entitled to paid 10-minute drink breaks under McDonald's Australia Enterprise Agreement 2013, which was approved by the Fair Work Commission on July 24, 2013.

According to the agreement, all employees are entitled to a 10-minute drink break when they work a shift between four to nine hours.

If they work more than nine hours, staff are entitled to two 10-minute breaks.

This is in addition to a meal break if working longer than five hours.

Ms Staines told the court her work was fast-paced, hot with a constant smell of food and the environment was stressful and demanding, physically and mentally.

"Ms Staines was denied a short respite from, what was by its nature, a mentally and physically demanding job," Justice John Logan said.

Brisbane businesswoman Tanya Manteit-Mulcah is the sole director of Tantex Holdings, which conceded it had not provided Ms Staines with the allowed breaks.

"The drink break for which clause 29 of the Agreement provided was a workplace right," Justice Logan found.

"So, too, for reasons explained above, was a right, within the bounds of reasonableness, to pause for a drink of water or to go to the toilet during a shift a workplace right."

This matter appears to have been before the Federal Court - Fair Work Division for the last nine and a half months. 

The Statement of Claim reportedly alleged that Tantex Holdings breached multiple workplace laws and accused managers of engaging in coercion and threatening conduct.

QAnon conspiracy theories end up in the Federal Court of Australia

The Guardian, 29 August 2020:

In May, Anne Webster, a first-term Nationals MP from Mildura in regional Victoria, quietly launched a defamation action in the federal court over a series of posts and videos about her on social media site Facebook. 

According to a statement of claim seen by Guardian Australia, posts made about the federal MP in April claimed, without any factual basis, that she was “a member of a secretive pedophile network” who had been “parachuted into parliament to protect a past generation of pedophiles”. 

Within weeks of the case being filed, Justice Michael Wheelahan made urgent orders for the defendant to remove the posts, labelling them “vile” and describing the legal action as “one of those exceptional cases” where the court could order the removal of the allegedly defamatory material before a trial. 

“Given the potency of the allegations [in the] online posts, the scandal created may well reach quarters that cannot be known … this is one of those rare cases where damages may not be an adequate remedy,” Wheelahan said. 

Webster’s case was filed against a woman named Karen Brewer, an Australian who the court believes may now live in New Zealand. Though she is basically unknown outside of the online communities in which she spends much of her time, Brewer – which may not be her real name – is one of Australia’s leading conspiracy agitators. 

Brewer’s personal Facebook page, which has thousands of followers, is a petri dish of beguiling theories and vicious abuse. In the steady stream of live videos and posts she feeds to her thousands of followers each day, Brewer rails against vaccinations, fluoride, and the cabal of Freemasons she believes controls Australia’s parliament, judiciary, media and bureaucracy as part of an extensive paedophile protection racket....

Though Australia’s conspiracy landscape is complex, increasingly the thread that unites these groups is a messy Antipodean adaption of QAnon, a sprawling and baseless internet conspiracy theory born in the online messaging board 4chan in 2017. 

Wide-ranging and preternaturally bewildering, QAnon adherents are loosely tied to the belief that, as the Guardian put it this week, “a cabal of Satan-worshipping Democrats, Hollywood celebrities and billionaires run the world while engaging in pedophilia, human trafficking and the harvesting of a supposedly life-extending chemical from the blood of abused children”. 

Evangelical in its zeal, adherents believe a multitude of spin-off theories, including that Bill Gates is using Covid-19 to implant microchips in people and that the ongoing lockdown in Victoria is a cover for the premier, Daniel Andrews, to install 5G technology throughout the state. 

Though Brewer is not outwardly affiliated with QAnon, many of her beliefs line up with the conspiracy. Webster’s defamation claim, which also includes her husband and a not-for-profit women’s organisation called Zoe Support Australia that they founded together in Mildura, alleges the posts falsely accused the couple of founding the women’s organisation to “access young children on behalf of a secretive pedophilia network”.

To date, social media companies have had little success controlling the growth of QAnon on their platforms.

Last week, Facebook announced it had taken down or restricted 790 groups, 1,500 ads and 100 pages tied to QAnon, and blocked more than 300 hashtags used by its followers on Facebook and Instagram. It followed Twitter’s announcement of a broad crackdown on about 150,000 accounts linked to the conspiracy in July.

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But those steps have had little effect. On Twitter, QAnon followers successfully hijacked a save the children hashtag after the purge and in Australia the Guardian noticed little if any impact on local QAnon groups after Facebook’s crackdown.

In fact, a recent report by the Institute for Strategic Dialogue found QAnon’s following was growing considerably in Australia.

“We found that the US was consistently the largest QAnon content-producing country, followed by the UK, Canada and Australia,” the report stated.

Though most of QAnon’s lore is specifically catered to a US audience (QAnon’s followers believe the US president, Donald Trump, is secretly working to thwart the network of paedophiles and their “deep state” collaborators), its inherent adaptability means it’s capable of hoovering up pre-existing conspiracy theories into its swirling illogic.....

Coalition shields firebrand MP Craig Kelly from censure for spreading Covid misinformation

Read moreIn Australia, its adherents have had no trouble retrofitting the theory to suit our politics.....

Karen Brewer
Snapshot taken from a YouTube video
30 August 2020

On 19 May 2020 there was a hearing in the matter of Webster v Brewer (No 2) [2020] FCA 727.

There was no appearance at that hearing by counsel for 52 year-old Ms. Brewer.

The Court accepted that Ms. Brewer had been properly notified of the hearing date, court details and had received the statement of claim & revised statement of claim.

On 19 May the Court reaffirmed Orders of 8 May - the following is an excerpt from those Orders.

THE COURT ORDERS THAT: 

PENAL NOTICE TO: 

KAREN BREWER IF YOU (BEING THE PERSON BOUND BY THIS ORDER): (A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR 
(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT. 

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED. 

 IN THESE ORDERS: 

 a) the respondent’s Facebook account is accessible at the URL address ‘https://www.facebook.com/karen.spiers.336’. 
b) the “First Post” is the post uploaded to the respondent’s Facebook account on or about 26 April 2020 at 6.21am. 
c) the “First Video” is the video post uploaded to the respondent’s Facebook account on or about 26 April 2020 at 2.01pm. 
d) the “Second Post” is the post uploaded to the respondent’s Facebook account on or about 27 April 2020 at 5.14am. 
e) the “Second Video” is the video uploaded to the respondent’s Facebook account on or about 30 April 2020 at 6.13pm. 
f) the “Third Post” is the post uploaded to the respondent’s Facebook account on or about 8 May 2020 at 5.42am. 
g) the “Third Video” is the video uploaded to the respondent’s Facebook account on or about 8 May 2020 at 6.00am. 
h) the “Fourth Video” is the video uploaded to the respondent’s Facebook account on or about 8 May 2020 at 7.44am.

THE COURT ORDERS THAT: 

Upon the applicants giving the usual undertaking as to damages (see Practice Note GPN-UNDR), until further order, the respondent by herself or by her servants or agents, or howsoever, be restrained from publishing or causing to be published in any form, or maintaining online for downloading, or uploading so as to make available for publication online: 
a)the First Post; 
b) the First Video; 
c) the Second Post; 
d) the Second Video; 
e) the Third Post; 
f) the Third Video; 
g) the Fourth Video; and any other matter to the same purport or effect as any of the above matters to the extent that such other matters identify the applicants, whether expressly or by implication.