Privacy

by Glyn Moody


Filed Under:
cjeu, data protection, eu, max schrems, privacy, social media

Companies:
facebook



Yet Another Legal Action By Dogged Privacy Activist Brings Good News And Bad News For Facebook In EU's Highest Court

from the Max-Schrems-strikes-again dept

The Austrian privacy activist Max Schrems has appeared a few times on Techdirt, as he conducts his long-running campaign to find out what Facebook is doing with his personal data, and to take back control of it. In 2011, he obtained a CD-ROM (remember those?) containing all the information that Facebook held about him at that time. More dramatically, in 2015 Schrems persuaded the Court of Justice of the European Union (CJEU) that the Safe Harbor framework for transferring personal data from the EU to the US was illegal under EU laws because of the NSA's spying, as revealed by Edward Snowden. As Schrem's detailed commentary (pdf) on that CJEU judgment explains, the case was specifically about Facebook, although it applied much more generally. Last month, we wrote about another case, currently being referred to the CJEU, concerning Facebook's use of standard contractual clauses (SCCs) (pdf), also known as "model clauses". It's an alternative legal approach for transferring data across the Atlantic, and if the CJEU rules against Facebook again, it could make things rather difficult for the big US Internet companies (but ordinary businesses won't be affected much.)

You might think that all these Facebook cases would be more than enough for any privacy activist, but not for Schrems, apparently. He is engaged in yet another legal action that involves Facebook (pdf). As Schrems explains:

[he] has sued Facebook over his private Facebook account at his home court in Vienna, Austria. Schrems accuses Facebook to massively violate strict European privacy laws. The lawsuit includes claims from invalid privacy policies all the way to data sharing with US intelligence services. In addition to bringing his personal claims, he also invited other users to sign over their rights to him, to form a so-called "Austrian style class action" against Facebook, in which he represents other users on a pro bono basis.

This legal action is rather different from the others discussed above, and involves Schrems personally suing Facebook in Austria using civil law. Unusually, he also gathered 25,000 people to join him in a class action against Facebook, each asking for €500 damages. Because of the importance of the legal questions under discussion, Austria's supreme court referred them to the CJEU for a definitive ruling. As is usual, before the CJEU judges themselves rule, one of the court's Advocates General offered a legal opinion, which has just been published. Two questions were considered: whether Schrems could bring a case at all, and whether a class action was possible. Here's Schrems' explanation of what the Advocate General (AG) said for the first issue:

Facebook tried to argue that Mr Schrems cannot bring a lawsuit at his home court, as he would not qualify as a consumer, but as a business. This is despite the fact that the courts have found, that the lawsuit is organized on a pro bono basis and he never used his Facebook account in any commercial way.

The strategy of Facebook was to force Schrems to bring his lawsuit at Facebook's home court in Dublin -- where a single case of €500 could cost Millions in legal fees. This was clearly rejected by the AG, just like previously by the Higher Regional Court in Vienna: Individuals that fight for their rights as volunteers are not 'businesses' and can enjoy their consumer rights. The AG confirmed: Mr Schrems can bring a 'model case' in Vienna.

On the second question:

the advocate general accepted Facebook's point of view: An "Austrian style class action" is only admissible against an Austrian company -- but not if an Austrian consumer sues a company in another EU member state [Facebook's EU operations have their headquarters in Ireland].

Schrems spends some time explaining why he thinks the Advocate General is wrong, and it's worth reading his thoughts here, since Schrems is naturally something of an expert in this domain after all these years. But as he also points out, what counts is what the five judges who will consider the case at the CJEU decide. Although they usually accept the reasoning of the Advocate General, they don't have to and sometimes disagree. Schrems thinks their judgment will be handed down in January 2018, after which the case will go back to the Austrian courts to make a final ruling based on the CJEU's findings.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+


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  • identicon
    Anonymous Coward, 27 Nov 2017 @ 8:23pm

    Why title for Facebook's perspective? Favor it over users?

    Seems odd to me that you even notice whether good or bad for privacy-violating Facebook.

    The "good" as you view it here means the mega-corporation can continue ruthlessly invading and "monetizing" privacy of users.

    Your neutral tone appears to tacitly approve -- by not strongly condemning -- Facebook's clearly underhanded tactics of A) regarding a "natural" person as a business (therefore not having standing), and B) trying to set venue in corrupt Ireland where costs "Millions" to bring the suit.

    reply to this | link to this | view in chronology ]

    • identicon
      CharlieBrown, 27 Nov 2017 @ 9:18pm

      Re: Why title for Facebook's perspective? Favor it over users?

      I think they are writing from the point of view that Techdirt is American and Facebook is American therefore European law is being stupid.

      I don’t know if that is the normal point of view of Techdirt, but this article could be read in that way quite easily..

      reply to this | link to this | view in chronology ]

      • icon
        orbitalinsertion (profile), 28 Nov 2017 @ 4:10am

        Re: Re: Why title for Facebook's perspective? Favor it over users?

        I think the posts here are written from the point of view of facts and outcomes. Opinions on matters are obviously stated as well. I don't see any personal opinions on the FB behavior in question at all.

        The title is obvious, the above conclusion regarding the title in not, whatsoever. Techdirt writers may disagree with FB operations (or any number of things), but it is not their job to loudly proclaim such in every article mentioning FB (or whatever) to someone's satisfaction. What is going against and for FB in the suit so far is exactly what the article is about. Would one who is concerned about FB choose to ignore what is going in FB's favor for some reason? That seems exactly counterproductive to the to the position in AC's comment.

        I wonder if the final paragraph was missed or something.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Nov 2017 @ 9:20am

      Re: Why title for Facebook's perspective? Favor it over users?

      The "good" as you view it here means the mega-corporation can continue ruthlessly invading and "monetizing" privacy of users.

      This wasn't claimed to be "good", it was claimed to be "good for Facebook", i.e., from their point of view. The headline could have been "good news and bad news for Facebook users" without much difference.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Nov 2017 @ 9:25am

      Re: Why title for Facebook's perspective? Favor it over users?

      Your neutral tone appears to tacitly approve -- by not strongly condemning -- Facebook's clearly underhanded tactics

      In what world is weak condemnation approval? The article used quotes from Schrems (saying the court "clearly rejected" Facebook's arugments), not Facebook, and says "it's worth reading" why the AG is wrong. It's mostly neutral, but if it's taking any side, it's Schrems's.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Nov 2017 @ 1:47pm

      Re: Why title for Facebook's perspective? Favor it over users?

      Masnick loves surveillance capitalism. Facebook is naturally a company he's a big fan of.

      reply to this | link to this | view in chronology ]

  • identicon
    Aligot, 28 Nov 2017 @ 4:14am

    Re: Why title for Facebook's perspective? Favor it over users?

    Techdirt's 'norml point of view' has been America = Yeah! Europe = Stupid for quite some time now. The whole idea that a handful of US companies dominating today's internet in highly dubious ways is in any way bad for the 95% of the world's population that doesn't live in the US floats right over TD's moral compass. A couple of years ago I was roasted here for pointing this out.

    reply to this | link to this | view in chronology ]

    • icon
      Zgaidin (profile), 28 Nov 2017 @ 4:42am

      Re: Re: Why title for Facebook's perspective? Favor it over users?

      I'm not sure I agree with this assessment of TD's viewpoint. I've read several articles over the last few years criticizing EU and non-American law makers and judges for the exact opposite, for passing laws and delivering judicial decisions that are likely to have a negative impact on non-American innovators and start-ups trying to break into a digital space. Speaking as an American, I agree with that sentiment because I would like a more geographically diverse set of providers for internet services. One, I think a diverse market pushes companies to offer better services, or at least differentiate them sufficiently enough that I might find one I like better than another. Two, I'd be thrilled to have as many of my "third party documents" stored outside the US as possible.

      That's always been my takeaway of TD's criticism of non-US law & policy decisions in the tech sphere: they're intent has been to hinder US-based giants, but the unintended consequences always look worse for EU and other non-US up-and-comers, who don't have access to the monetary and political resources of the big incumbents to fight them.

      reply to this | link to this | view in chronology ]

      • identicon
        Wendy Cockcroft, 29 Nov 2017 @ 5:56am

        Re: Re: Re: Why title for Facebook's perspective? Favor it over users?

        UK resident here: TD often calls out bad laws and bad legal decisions on both sides of the Pond. I haven't noticed an anti-European bias here at all, and I've been following this blog since 2011.

        reply to this | link to this | view in chronology ]


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