Max Schrems now fears delay in Facebook privacy case

The Austrian privacy campaigner Max Schrems says he fears a ruling by the Data Protection Commissioner (DPC) on his complaint against Facebook could be delayed by a "very long and deep investigation".

The “big question” at the conclusion of the landmark privacy case is whether the DPC will take action on his complaint about Facebook and alleged access to its data by US security authorities, Mr Schrems said.

Following the key ruling by the Court of Justice of the European Union in Luxembourg, the case was back before Mr Justice Gerard Hogan in the High Court yesterday.

Long-fingered

The Luxembourg judgment of October 6th invalidated the so-called Safe Harbour mechanism used by companies to legally transfer personal data between the EU and the US, leaving political and legal headaches in its wake.

Mr Justice Hogan yesterday quashed the original decision by then commissioner Billy Hawkes not to investigate Mr Schrems complaint, but said he had taken the view that his hands were tied by Safe Harbour. He referred the complaint back to commissioner Helen Dixon's office for an investigation which he had no doubt would be done with "appropriate and due speed".

Referring to it as a case of “transcendent international importance”, the judge said that even the legal eye had difficulty determining whether the issues were now a matter of Irish law, European law, or a combination of both.

Was it a case of the “green” of Irish law, or the “blue” of EU law, or was it “aquamarine” – a “mottled and dappled legal landscape full of different colours; full of blue and green and at times a mixture of both”.

Judge Hogan, who had referred the case to Luxembourg when Mr Schrems sought to judicially review the commissioner, said he wasn’t expressing any view on that matter.

But it was now not in dispute that as a matter of European law, the commissioner was obliged by Article 25 of the EU data protection directive, to investigate.

Paul Anthony McDermott SC for the commissioner said there was no need for the court to make an order compelling his client to investigate as she would “clearly comply”. Now that there was going to be a fresh investigation, his client “will have to have an open mind”.

“There’s no question of it being long-fingered,” he said.

Action

Speaking outside the court in Dublin, Mr Schrems said that “theoretically” a decision could be made by the commissioner “within weeks”.

But he did not think the commissioner would go down that road, so it was “very likely we’ll see a very long and deep investigation” and very long debates with Facebook.

“We will just see if the DPC is taking action or not. That’s going to be the big question in the end.”

The commissioner welcomed the ruling and said her office would now proceed to investigate the substance of Mr Schrems’s complaint “with all due diligence”.