Facebook decision can be reviewed

The High Court has granted leave for a judicial review of a decision by the Irish Data Protection Commissioner not to investigate a complaint involving Facebook International and the US data collection programme Prism.

Austrian data privacy campaigner Max Schrems is challenging the refusal of the commissioner to investigate the Dublin-based Facebook subsidiary after allegations by US whistleblower Edward Snowden that it shared European user data with US authorities.

He asked the commissioner to investigate the allegations and whether companies under its jurisdiction were in breach of EU data protection regulations. His complaint was dismissed as “frivolous and vexatious”.

'Nothing to investigate'
In a ruling in July, the Data Protection Commissioner said there was "nothing to investigate" in the Schrems complaint because Facebook had, in its view, acted within the terms of the EU-US data-sharing agreement dubbed "Safe Harbor".

This agreement, dating back to 2000, permits transatlantic data transmission by allowing US companies self-certify that they meet EU privacy requirements. The commissioner said the agreement also permits data sharing if law enforcement authorities request it.

However, the European Commission has expressed concern that Prism has exposed a loophole in the Safe Harbor agreement.

Similar complaints
Mr Schrems has filed similar Prism-related complaints in several European countries where subsidiaries of other US technology companies are based. Data protection authorities in Luxembourg are considering his complaints relating to Skype and Microsoft; German authorities are investigating his complaint against Yahoo.

“Instead of making a decision, the [Data Protection Commissioner] decides not to decide,” said Mr Schrems yesterday.

Yesterday he and other members of his Europe-v-Facebook campaign group travelled from Vienna to Portarlington to serve papers on the Data Protection Commissioner. They will be back in Dublin for the hearing, scheduled for December 10th. A spokeswoman for the commissioner said: “We will be vigorously defending our position.”