Inquiry into Facebook’s transfer of data challenged by Max Schrems

Privacy and data rights activist Max Schrems has brought a High Court challenge aimed at halting the Data Protection Commissioner's inquiry into Facebook Ireland's transfer of data to its US-based parent.

Mr Schrems has brought judicial review proceedings because of his “real and immediate” concern that the DPC is engaged in a process that will have an effect on the investigation and outcome of a complaint he made several years ago to the DPC about Facebook’s handling of his personal data.

He believes the DPC’s inquiry will exclude him from a process that he has been engaged in for several years.

In late August, the DPC, Ireland's supervisory authority for data protection rights, informed Facebook Ireland, the EU HQ of the Facebook and Instagram platforms, of its preliminary draft decision that personal data should not be transferred out of the EU to its American parent Facebook Inc.

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The DPC said the data transfers were made in circumstances that fail to guarantee a level of protection to data subjects equivalent to those provided for in EU law.

Submissions

The DPC invited Facebook to make submissions on its preliminary decision. Its decision to open an inquiry is the subject of a separate High Court challenge by Facebook.

The DPC opened the inquiry, at its own volition, following a judgment from the Court of Justice of the European Union handed down last July.

In proceedings before the High Court on Monday, Mr Schrems says his earlier complaint about the data transfers, which led to the proceedings in the Irish and European courts, had not been completed by the DPC.

His original complaint about the transfer of his personal data was made to the DPC in 2013, and was reformulated in 2015.

Mr Schrems, an Austrian lawyer based in Vienna, claims the own-volition inquiry has had the effect of suspending the DPC's investigation into his complaints, and breaches his rights to be heard.

He also claims the DPC’s own-volition inquiry would fail to examine certain bases upon which Facebook is trying to rely to legitimise EU-US data transfers.

Quashing

Mr Schrems, represented by Eoin McCullough SC and James Doherty SC, is seeking orders quashing the DPC's decision to open an own-volition inquiry into Facebook's transfer of data and directing the DPC to complete the investigation of his complaint with all due diligence and speed.

He is seeking various declarations, including that any inquiry into the issues including in the DPC’s own-volition inquiry must be conducted as part of a complaint-based inquiry.

Mr McCullough told the court Mr Schrems’s case is that the DPC has failed to give adequate reasons for its decision to open an own-volition inquiry rather than a complaint-based inquiry.

Counsel argued the DPC has acted in breach of Mr Schrems’s rights to fair procedures by refusing to provide him with copies of documents submitted by or sent to Facebook in the context of his original complaint.

Permission to bring the challenge was granted, on an ex-parte basis, by Mr Justice Anthony Barr.

The judge put a stay on the DPC’s investigation pending further orders and adjourned the matter to December.