Schrems and Facebook privacy case: next round set for February

A High Court judge has fixed next February to hear the action by the Data Protection Commissioner over the legality of existing data transfer channels between the EU and the United States.

Mr Justice Brian McGovern fixed the hearing, which has potentially enormous implications for EU-US trade and the data privacy rights of millions of EU citizens, for February 7th, 2017. It will run for up to three weeks.

Commissioner Helen Dixon wants the High Court to refer issues concerning the validity of data transfer channels, known as Standard Contractual Clauses and approved by various European Commission decisions, to the Court of Justice of the EU (ECJ) for determination.

She brought proceedings after making a draft finding last May that Austrian privacy activist Max Schrems had raised well-founded objections on whether existing channels breach the data privacy rights of EU citizens. That finding arose from a complant by Mr Schrems as to what was happening his Facebook data when sent to the US for processing.

The commissioner’s case is against Mr Schrems and Facebook Ireland because Facebook’s European headquarters are based here.

Hearing date

On Monday, the case was before Mr Justice McGovern for directions on exchange of legal documents between the sides for the full hearing and to fix a hearing date.

The judge dismissed arguments by Eoin McCullough, for Mr Schrems, that before any High Court hearing the commissioner should make a "full" finding on facts. The commissioner, counsel argued, had to date only made a draft finding concerning Mr Schrems's objections and had said her decision was subject to further submissions from Mr Schrems and Facebook. Making a final decision on the facts before any High Court hearing to refer issues to the ECJ would save time and costs, he said.

Paul Gallagher, for Facebook, described Mr Schrems’s arguments as “extraordinary” and “misconceived” and made too late in circumstances where Mr Schrems had participated in pre-hearing preparations.

Michael Collins, for the commissioner, agreed and said she has followed the correct procedure for seeking a reference. Unlike a normal reference to the ECJ which is then returned to a national deciding authority, no national court can declare a decision of the European Commission invalid and only the European Court can do that, he said.

The judge rejected Mr Schrems’ arguments and made the directions requested. He also fixed for hearing on October 17th Mr Schrems’s application for a protective costs order, aimed at ensuring he will not be exposed to any liability for legal costs.

Indian application

The judge refused as too late a request by Declan McGrath, for Nasscom, an Indian-based IT trade representative body, for leave to bring an application to be joined as amicus curiae (assistant to the court on legal issues).

Nasscom only learned in recent days of the Irish court proceedings and was concerned about the implications for Indian entities heavily reliant on data transfers, counsel said. It could bring a unique perspective in relation to the potential impact on entities outside the EU and US. While the EU and US recently agreed a Privacy Shield arrangement on data transfer, that did not apply to third countries, Mr McGrath added.

Last week, the judge granted applications by the US government, US-based data privacy wathdog Epic (Eletronic Privacy Information Centre), the Business Software Alliance and Digital Europe to be joined to the case as amicii curiae. Only a party to the Irish proceedings can participate in any reference to the ECJ.