Federal Court of Australia

Australian Securities and Investments Commission v eToro Aus Capital Limited (No 3) [2026] FCA 1604

ORDERS

THE COURT ORDERS THAT:

1. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) and on the grounds referred to in s 37AG(1)(a) of the Act, from the date of this order, the Confidential Information as defined in Schedule A to these Orders not be published or disclosed to or by any person or entity and not be disclosed in the open part of any Court transcript, and be restricted to:

(a) the parties;

(b) the parties' legal representatives;

(c) the independent expert witnesses for the parties;

(d) the Mediator and necessary staff of the Mediator in respect of the Mediation that was held between the parties;

(e) ASIC's staff working in respect of this proceeding as notified in writing by the plaintiff to the defendant from time to time;

(f) the presiding judge; and

(g) necessary court staff.

2. Any original or copy of any document forming part of the Confidential Information be marked on each page with the words "Confidential Information for use in Court proceeding NSD 805 of 2023".

3. Any original or copy of any document forming part of the Confidential Information that is admitted into evidence:

(a) be identified on any list of exhibits as such; and

(b) not be further copied or reproduced, by any means, including by electronic or photocopy means or handwritten summary thereof.

4. The transcript containing any Confidential Information be redacted by agreement of the parties, with the scope of such redactions to be approved by the Court via email between the parties and the presiding judge's Associate.

5. Orders 1 to 4 shall operate until 4.00pm on 20 February 2028 or until further order.

6. The defendant has liberty to apply to the Court to extend the date referred to in Order 5, provided that any such application is filed with the Court at least one month before the time expires.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

SCHEDULE A

In these orders, Confidential Information means the information marked as redacted, consistently with the Court’s reasons, in the following documents:

REASONS FOR JUDGMENT

STELLIOS J:

1 These reasons deal with a further application by the defendant (eToro) for orders under s 37AF of the Federal Court of Australia Act 1976 (Cth) for the suppression and non-publication of certain documents filed in the substantive proceeding (s 37AF(1) application). eToro relies on the ground in s 37AG(1)(a) that the orders are necessary to prevent prejudice to the proper administration of justice. Interim orders under s 37AI of the Act have been made in relation to most of those documents.

2 This is the fourth s 37AF(1) application I have determined in the proceeding. I previously made orders on 20 February 2025, 29 October 2025 and 4 December 2025. In the reasons accompanying the orders made on 20 February 2025, I set out the applicable legal principles: Australian Securities and Investments Commission v eToro AUS Capital Limited [2025] FCA 100 at [13]–[17]. These reasons should be read together with those earlier reasons.

3 The documents sought to be covered by the proposed orders include passages in the affidavit of Tracy Byrne filed on 9 December 2024; the expert report of Wesley McMaster filed on 11 February 2025; eToro’s submissions filed on 14 August 2025; exhibits in the Supplementary Court Book and Supplementary tender list; and the parties’ written closing submissions.

4 In relation to many of the claimed documents or parts thereof, the plaintiff (ASIC) neither consented nor objected to the making of the orders. I have considered the information in that uncontested category and have concluded that, consistently with my earlier reasons, orders under s 37AF should be made on the basis of s 37AG(1)(a). That information is commercially sensitive, is not available in the public domain, would be of value to eToro’s competitors and would place eToro at a competitive disadvantage if publicly disclosed.

5 In these reasons, I will only consider further information that was contested by ASIC.

6 For the following reasons, I will make orders under s 37AF(1), in substantially the same final form in which they were sought, over all documents and portions of documents identified by eToro (subject to a few exceptions).

interlocutory application and evidence

7 The s 37AG(1)(a) application has evolved over time. In its interlocutory application, eToro initially sought the following orders:

1. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (Act) and on the grounds referred to in s 37AG(1)(a) of the Act, from the date of this order, Confidential Information as defined in Schedule A not be published or disclosed to or by any person or entity and not be disclosed in the open part of any Court transcript, and be restricted to:

a. the parties;

b. the parties' legal representatives;

c. the independent expert witnesses for the parties;

d. the Mediator and necessary staff of the Mediator in respect of the Mediation that was held between the parties;

e. ASIC's staff working in respect of this proceeding as notified in writing by the plaintiff to the defendant from time to time;

f. the presiding judge; and

g. necessary court staff.

2. Any original or copy of any document forming part of the Confidential Information be marked on each page with the words "Confidential Information for use in Court proceedings NSD805 of 2023".

3. Any original or copy of any document forming part of the Confidential Information that is admitted into evidence:

a. be identified on any list of exhibits as such; and

b. not be further copied or reproduced, by any means, including by electronic or photocopy means or handwritten summary thereof.

4. The transcript containing any Confidential Information be redacted by agreement of the parties within one business day of the transcript becoming available to the parties, with the scope of such redactions to be approved by the Court either on the next day that the Court sits in the hearing of these proceedings or otherwise via email between the parties and the presiding judge's Associate.

5. Orders 1 to 4 shall operate until 4.00 pm on 20 February 2028 or until further order.

6. The defendant has liberty to apply to the Court to extend the date referred to in order 5, provided that any such application is filed with the Court at least one month before the time expires.

8 Schedule A to the interlocutory application defined the confidential information sought to be covered by the proposed orders. The information was contained in affidavit evidence, an expert report, submissions, the Supplementary Court Book and the Supplementary tender list.

9 eToro then sought to extend the interlocutory application to information in the parties’ written closing submissions in the substantive proceeding, which were filed after the interlocutory application, and Schedule B (identifying that additional information) was provided and subsequently updated.

10 ASIC opposed suppression and non-publication orders being made with respect to some of the documents identified in Schedules A and B on the basis that they do not meet the threshold required by s 37AG(1)(a).  As indicated earlier, for the remaining documents or parts thereof, ASIC neither consents to nor opposes the orders sought.

11 Annexed to eToro’s submissions in support of its interlocutory application was an annotated version of Schedule A, setting out ASIC’s position on each document over which suppression was sought and eToro’s response. As a result, eToro did not press some of the redactions to which ASIC objected.

12 The parties then provided an annotated version of Schedule B, which set out the documents in Schedule B to which ASIC objected being the subject of the proposed s 37AF(1) orders, and eToro’s response to those objections. In its response, eToro did not press several of the items to which ASIC objected. For convenience, the orders that will be made will combine the documents into one Schedule A.

13 In support of its interlocutory application, eToro relied on the following affidavits:

(1) Debbie Kahal affirmed on 6 February 2025;

(2) Debbie Kahal affirmed on 26 February 2026 (2026 Kahal affidavit); and

(3) McKenzie Moore affirmed on 26 February 2026.

CONSIDERATION

The contested categories

14 The contested areas can be broadly summarised in the following way (although there is considerable overlap across the categories):

(1) Client, financial, and marketing data (category 1). The 2026 Kahal affidavit describes the client data as including personal information; customer account summary data; and customer trade activity data concerning contracts for difference. In addition to these types of data, the 2026 Kahal affidavit states that the relevant information contains eToro’s marketing and sales retention data (marketing data) and eToro’s financial performance data (financial data). This is consistent with my own assessment that the information includes (a) generalised information as well as information about particular clients, and (b) information about client characteristics, segmentation, screening and trading behaviour. The identification in the 2026 Kahal affidavit of financial and marketing data as including revenue breakdowns by customer segments identified by demographics, product type and underlying asset class, and strategies on customer acquisition and retention is also consistent with my own assessment of that information;

(2) The impact of changes in screening and suitability tests on eToro’s business and clients (category 2);

(3) Information about clients who access eToro’s Academy (category 3); and

(4) Client complaints and how they were dealt with by eToro (category 4).

ASIC’s three broad submissions in opposition

15 Before considering those categories, I will address at the outset three broad objections raised by ASIC in opposition to the s 37AF(1) application.

16 First, that the information has been tendered in open court during the final hearing on liability. As ASIC submitted, when materials are deployed in open Court, “the principle of open justice will be facilitated and advanced by permitting interested third parties to access those documents and thereby ascertain and understand the legal and factual basis of the proceeding and the course the proceeding took”: George v Council of the King’s School [2026] FCA 394 at [42] (Wigney J). As Wigney J further said in George:

Conversely, suppressing or prohibiting the disclosure or publication of those documents will tend to stymie or subvert the principle of open justice because that part of the proceeding that took place in open court would not be fully exposed to public and professional scrutiny.

17 I accept that this can be a “weighty consideration” (at [42]) against the making of orders.  However, I also accept the thrust of eToro’s submission that, despite the information being tendered in open court, it remains practically obscured within the evidentiary record without public disclosure. Indeed, interim orders under s 37AI were made on 25 March 2026 which have since prevented the disclosure of that information.

18 Secondly, that the information sought to be protected from disclosure is in a similar category to what was discussed by Edelman J in Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [9]. With respect, the analogy is not a strong one. In Valve, the respondent sought confidentiality orders in respect of financial information in some of its proposed answers to interrogatories. His Honour considered that the s 37AG(1)(a) application was premature; that orders are not usually made in the absence of the Court seeing the information; there was no present threat to any confidentiality because the information provided to the applicant would be subject to equitable duties of confidence if confidential and the usual duty would be imposed on the applicant concerning its use; the applicant had undertaken not to use or disclose the information other than for the purposes of the litigation in question; and the appropriate time for consideration of orders would be at the commencement of the hearing: at [2]–[3].

19 His Honour nonetheless expressed doubt about the vague and general nature of the respondent’s claims of prejudice and stated that it would come as no surprise to “a member of the public to discover that an enterprise with millions of subscribers in Australia alone, and operating in many countries across the world, is ‘highly profitable’”: at [3]. However, the claims for confidence in relation to which those doubts were expressed related to information about the actual and estimated amounts of gross revenue and net profit. The respondent’s submission was that the public disclosure of information disclosing its high profitability would motivate competitors to increase their presence in the market or encourage new competitors to enter the market; Valve’s private financial information would make negotiations with potential business partners more difficult; and disclosure of the size of its business would attract more third party claims and encourage an increase in fraudulent orders (an issue the respondent was then addressing): at [10].

20 It was in that factual context that his Honour expressed “serious doubts” in the following terms (at [12]):

it may be that these same points could be made about nearly every case involving a private corporation where pecuniary penalty orders are considered. These points involve assertions and speculation, and they do not currently appear to be supported by any clear evidence of a real likelihood of concrete prejudice.

21 Additionally, financial estimates of the size of the respondent’s enterprise and its profitability were already public information: at [15].

22 The circumstances in Valve are far removed from the present application. Unlike Valve, the detail of the information sought to be protected by the proposed orders is before the Court and is not in its character of such a general kind that it is discernible from public sources. Unlike Valve, there is a factual basis before the Court from which inferences can be drawn about the likely impact of disclosure.

23 Thirdly, again with reliance on Edelman J’s reasons in Valve, ASIC submitted that the information to be protected by the orders “is now many years old” and “it is difficult to see how such information would realistically have sufficient value to eToro’s competitors so as to justify non-publication orders” (at [20]). ASIC’s general objection in this respect appeared to be directed to data over the period 2021 to 2024.

24 However, his Honour in Valve also recognised that “historical information, combined with other matters, can be sufficient for a confidentiality order” (at [20]), citing in support Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 at [34] (Perram J); see also Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082 at [22] (Greenwood J). Much will depend on the context. In Valve, Edelman J stated that, in that case, “the Court ha[d] not seen the confidential information and the basis for confidentiality [was] expressed at a high level of generality”. In my view, that is not this case. I have before me the relevant confidential information. On my understanding of eToro’s business model and current product offerings, the kind of information identified at [14] could not be said to be too old to be of utility to eToro’s competitors. I consider that a reasonable inference can be drawn that the information would remain of genuine interest to its competitors even though it relates to an earlier period from 2021 to 2024.

Assessing the categories in dispute

25 I now turn to assess the categories identified above at [14].

26 In relation to category 1, Ms Kahal deposes that the disclosure of the information has the capacity to benefit eToro’s commercial competitors in the ways set out at [30]–[36] in my earlier reasons, by allowing competitors to price their products with the benefit of eToro’s financial data, and by taking advantage of eToro’s investment in marketing.

27 In my assessment based on that evidence, there is a real risk that the disclosure of this information would reveal sensitive commercial information, including information about the performance of eToro’s products; revenue streams; client characteristics, segments, demographics and trading behaviour; and, in some cases the identity of clients. I also accept eToro’s submission that the information is not ordinarily publicly available and is not information that could be reconstructed or inferred from publicly available sources. I am satisfied that the disclosure of this information could operate to eToro’s competitive disadvantage. Indeed, the information in this category, particularly client data, is materially indistinguishable from information that was subject to my previous orders.

28 In relation to category 2, I accept the submission that such information tends to disclose the trading behaviour of client segments and demographics who are trading particular products and the consequent impact on eToro’s business model and revenue.

29 I also accept that the information in category 3 relates to the utilisation by eToro clients of a feature of eToro’s trading platform. There is a reasonable inference that the disclosure of that information would tend to assist competitors to understand eToro’s offerings in a way that is not readily apparent.

30 As for category 4, I was initially concerned about the breadth of the information sought to be suppressed, which includes de-identified complaints that had not been substantiated, and I asked the parties to address the matter further in oral submissions.

31 eToro submitted that it had invested significant amounts of money in research and development of its products, marketing and customer segmentation, and that the complaints documents broke down data measurements by products and customers. The documents also record complaints against particular products or product features.

32 eToro submitted that public disclosure of this information is capable of causing damage in the nature of advantaging trade rivals and prejudicing its business in the way described by Katzmann J in Australian Competition and Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278 which I referred to in my earlier reasons at [16]. Drawing by analogy from what Ms Kahal said in her affidavits about what is revealed in the financial data concerning product segmentation, the argument was put that complaints data segmented and broken down in this way could foreseeably be used by trade rivals to gain insight into client perceptions of products and product features. This information could then be used by competitors to adjust their products, product features and marketing.

33 In response, ASIC clarified that it did not object to the personal information of clients in the complaints data being subject to suppression and non-publication orders. However, ASIC submitted that the complaints data itself should not be subject to the orders because:

(1) There is no strong correlation between the collation of information about complaints and the performance of a product;

(2) There is no real evidence about how information about complaints could be used by competitors, and the assertions in the affidavits did not support any conclusions about how competitors would use this kind of historical complaints information; and

(3) The redactions go beyond information about product type and were over much broader complaints data, including the individual detail and nature of complaints, as well as complaints unrelated to products and data that is unrelated to product types.

34 ASIC submits that the redactions should be limited to personal information contained in those documents.

35 After further review, there appear to be seven documents that contain information about complaints: ETA.060.009.0001, ETA.060.009.0002, ETA.060.037.0001, ETR.0010.0001.0009, ETR.0010.0002.0010, ETR.0010.0001.0084 and ETA.018.001.0500.

36 For the reasons to follow in the next paragraph, the entire claimed content of ETA.060.037.0001, ETR.0010.0001.0009, ETR.0010.0001.0084 and ETR.0010.0002.0010 (which appears to be a duplicate of ETR.0010.0009) should be the subject of the suppression and non-publication orders.

37 I am satisfied that the complaints information referred to in the previous paragraph, to be subject to the orders, is sufficiently identified by reference to the product in question. I am satisfied that such information is capable of utilisation by competitors to assess the performance of eToro’s products and to inform choices about product offerings by competitors. Upon further reflection, my initial concern about substantiation does not undermine that conclusion. Those documents include indications of how complaints were resolved.

38 However, pages 1 and 2 of ETA.060.009.0001, page 3 of ETA.060.009.0002 and page 13 of ETA.018.001.0500 should not be included within the orders. The complaints information on those pages is of a summary nature and/or does not sufficiently identify the complaints by reference to product type. Suppression and non-disclosure of the information referred to on these pages is not justified. The balance of the complaints information in these documents should be included in the scope of the orders for the reasons given at [37].

39 In closing, there are three further points to note. First, these evaluations of the impact of disclosure require a degree of prediction and uncertainty. However, I do not accept ASIC’s submission that the inferences to be drawn about the prejudice to be suffered are speculative. In my view, there is a reasonable basis in the evidence for the inferences drawn.

40 Secondly, I note that, for the most part, eToro has not sought the suppression of entire documents. Instead, the redactions have been narrowly identified and tailored to what is necessary to prevent the disclosure of commercially sensitive information that would be of benefit to its competitors. Where the suppression of entire (or substantially entire) documents has been sought and granted, I am satisfied that any information contained in those documents that (a) does not itself reveal information of a sensitive commercial character but (b) either provides context for commercial information or cannot be disentangled in such a way that would provide any meaningful information for public disclosure, should also be covered by the orders.

41 Thirdly, consistently with my previous orders, I am also satisfied that the duration of the orders is no more than is reasonably necessary to achieve the purpose of the orders: s 37AJ.

Other matters

42 Finally, I should mention one change that I made to Schedule A. eToro sought to include within the orders paragraph [85] of its closing submissions. However, that appears to have been included in error as no redaction has been proposed for that paragraph. Nor is a redaction warranted as that paragraph contains only a short introductory sentence. Accordingly, it is not included in Schedule A.

conclusion

43 Accordingly, with the exceptions identified at [38] above, I am satisfied that eToro has discharged its onus of establishing that suppression and non-publication orders in substantially the same terms finally sought are necessary to protect the administration of justice and I make orders in those terms.

44 While ASIC was mostly unsuccessful in resisting the application, I acknowledge the importance of parties actively engaging with applications under s 37AF(1). Parties often adopt a position of neither consenting to nor opposing such applications, with the result that there is no effective contradictor. In many cases that might be an appropriate course of action. However, active engagement by parties (whether in support or opposition) assists the Court in evaluating whether a s 37AF(1) ground has been established. ASIC’s engagement with this application was of considerable assistance to the Court.

Associate:

Dated:    28 October 2026