Privacy campaigner wants to be part of Meta case against data watchdog

A privacy rights campaigner wants to participate in litigation brought by Facebook owner Meta over a decision requiring the suspension of the transfer and storage of user data from Europe to the US, the High Court heard.

Max Schrems, an Austrian lawyer and activist with the privacy rights organisation NOYB (None Of Your Business), wants to be joined as a notice party in two separate but linked High Court cases over the data transfer decision.

Campaigners claim the US does not provide the same level of protection for data users as is provided in EU/European Economic Area (EEA) countries.

The first case being brought by Meta is a statutory appeal against the May 2023 decision of the Data Protection Commission (DPC) requiring Meta to suspend US data transfers.

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It followed an inquiry carried out by the DPC, at its own volition, into the data transfers issue and also resulted in a record €1.2 billion fine on Meta. The second case is a judicial review by Meta seeking to quash that DPC decision.

Mr Schrems’s lawyers asked the court on Thursday that he be joined as a notice party in those cases. Meta and the DPC opposed the application.

Eoin McCullough SC, for Mr Schrems, said the only thing that appeared to unite Meta and the DPC was that they did not want Mr Schrems/NOYB involved at this stage of the proceedings.

It was not in dispute however that the only reason the entire inquiry came into existence was because of an original complaint made by Mr Schrems to the DPC in 2013 about the US data transfers, he said.

Mr Schrems brought a High Court challenge against the DPC’s 2013 decision to refuse to deal with his complaint. It ultimately resulted in two Court of Justice of the EU (CJEU) decisions that upheld his concerns about the data transfers.

It was following the second CJEU decision that the DPC launched its “own volition” inquiry into the transfers in 2020, counsel said.

The DPC intended to exclude Mr Schrems from that inquiry and it was only after he brought proceedings challenging that decision that they were settled on the basis that he could participate in the inquiry, he said.

When the DPC announced its decision requiring Meta to end the transfers last May, Meta brought its High Court proceedings.

Mr McCullough said if it was not for Mr Schrems’s original 2013 complaint, none of the important litigation that followed would be in existence.

Mr Schrems had played an important role in the CJEU cases and sometimes adopted a different position from that of the other parties [Meta and the DPC], he said.

His original 2013 complaint remained unresolved and it could not be disputed that the decisions in this litigation were likely to have an impact on that complaint, he said.

A proposal from Meta that Mr Schrems could be an amicus curiae (friend to the court), rather than a notice party, was not enough to allow his client get involved in an analysis of the evidence when the case goes to hearing, he said.

Declan McGrath SC, for Facebook, said it was not enough to be vitally interested in a case to be joined as a notice party, it must be that you are directly affected by the outcome of the proceedings.

Mr Schrems was one of hundreds of millions of Facebook users who may be vitally interested in the outcome, but it could not be said he was directly affected, he said.

While it may be true to some extent that Mr Schrems’s original complaint “started the ball rolling”, it did not mean he was directly affected by the outcome of these proceedings, he said.

Kelley Smith SC, for the DPC, said it was being argued that Mr Schrems was special and should be treated differently from other Facebook users. Any decision that he was would have ramifications beyond these proceedings in the context of the DPC’s work and the potential impact on judicial review and other statutory appeal proceedings, she said.

Mr Justice Michael Quinn reserved his decision.