Background
In substantive proceedings brought by the Australian Securities and Investments Commission, eToro applied under s 37AF of the Federal Court of Australia Act 1976 (Cth) for final suppression and non-publication orders covering specified information in affidavits, an expert report, exhibits and written submissions. Interim orders already protected most of the material, and the Court had decided three earlier confidentiality applications in the proceeding.
The disputed material included client, financial and marketing data; information about the effects of screening and suitability tests; data concerning clients’ use of eToro Academy; and client complaints. ASIC neither consented nor objected to many proposed redactions but opposed protection for certain material, arguing among other things that it had been tendered in open court, was historical and lacked sufficient evidence of competitive harm.
The Court’s Holding
Justice Stellios held that suppression and non-publication orders were necessary to prevent prejudice to the proper administration of justice within s 37AG(1)(a). The protected information was not publicly available, remained commercially useful despite dating from 2021 to 2024 and could assist competitors by revealing eToro’s product performance, revenue streams, customer characteristics and behaviour, marketing investment, and aspects of its platform and business model.
The Court also protected product-specific complaints information where competitors could use it to assess products and shape their own offerings. It excluded pages containing only summary complaints data or information insufficiently linked to a product, as well as one paragraph of eToro’s closing submissions included by error. The resulting orders restrict access to the scheduled confidential information and operate until 4:00 pm on 20 February 2028, subject to further order or a timely application to extend them.
Key Takeaways
- Commercial information may warrant suppression even after being tendered in open court if it remains practically obscured and disclosure would create a real risk of competitive prejudice.
- Historical business data can remain commercially sensitive when its nature and the company’s current business model support an inference that competitors would still find it useful.
- Suppression must be tailored: the Court protected product-specific complaints material but refused protection for summary or insufficiently product-linked information.
Why It Matters
The decision illustrates the evidence and contextual analysis required to displace open-justice considerations under s 37AF. General assertions of confidentiality are insufficient, but a court may infer concrete competitive harm where it has reviewed the information and the evidence explains its continuing commercial value.
It also shows that complaints data can qualify for protection beyond customers’ personal information when it reveals product-level insights useful to competitors. At the same time, applicants must confine proposed redactions to material for which suppression is genuinely necessary.