The battle between Facebook and the Office of the Australian Information Commissioner (OAIC) ​​this week found a High Court hearing over the infamous Cambridge Analytica scandal in which the personal data of 300,000 Australians was harvested without their consent.

Facebook is suing three years following revelations that between 2014 and 2015, the “This is Your Digital Life” app on its platform collected profile data from everyone who used it and that of all their friends, thanks to a feature in Facebook’s API.

More than 80 million people around the world had their data collected by the app, which was then passed on to the notorious data analytics company Cambridge Analytics who claimed to have influenced more than 200 elections around the world.

Tried Facebook in vain to defend himself in Federal Court by stating that Facebook Ireland – the holding company and international arm of its advertising business that was sued – did not actually operate in Australia.

Now his lawyers are arguing in the Supreme Court that his actions did not fall under the section of the Privacy Act that says an international organization must have an “Australian link” determined by whether it “does business in Australia”.

It’s those last five words that Facebook and the OAIC wrestle over before the actual Cambridge Analytica case can even begin.

Facebook, in his outline of the argument filed in the Supreme Court, claims that a company “must at least” be shown to have “entered into commercial transactions” and that acts that are merely “going to carry on a business” – such as collecting data – not necessarily pass that test.

The OAIC lawyers argue that this is nonsense, arguing that “while the data processing services were performed in data centers abroad, the data processing included acts of Facebook Inc in Australia”.

Those data processing operations included installing cookies on people’s devices and managing Facebook’s “Graph API,” which allowed “apps to create a link or interface between the social graph of the Facebook platform and the app” in a way that “was integral to Facebook’s commercial pursuits”.

The Information Commissioner wants Facebook’s appeal dismissed on the grounds that the company “continued its global operations in Australia” both through Facebook’s Irish holding company and directly through cookies and the Graph API.

Facebook’s lawyers said there was “no evidence base” for the claim that cookies installed on Australian devices “confer a commercial advantage” to the US company.

It also opposes the OAIC’s argument that Facebook “kept” personal information in Australia by installing it on local devices, saying that evidence “shows that it is the user who has control over cookies installed on their device , and can remove or block it at will”.

The Supreme Court case is still pending.