Schrems entitled to sue Facebook’s Irish subsidiary, says adviser

Final ECJ ruling in case taken by Austrian lawyer to be given at later date

Max Schrems: the Austrian activist’s Facebook case has its origins in a 2011 complaint he filed to the Data Protection Commissioner in Dublin.

Max Schrems: the Austrian activist’s Facebook case has its origins in a 2011 complaint he filed to the Data Protection Commissioner in Dublin.

 

Viennese lawyer Max Schrems is entitled to sue Facebook’s Dublin-based subsidiary through the Austrian courts, a leading European Union court adviser has argued, but not as head of a class action lawsuit.

The non-binding opinion by the EU advocate general pertains to a privacy violations case taken by Mr Schrems against the US social media company before the Austrian courts.

Vienna’s supreme court asked the European Court of Justice (ECJ) for clarity on two points: its own jurisdiction over the case and the issue of class-action lawsuits.

Jurisdiction

In his opinion, advocate general Michal Bobek said that, contrary to Facebook’s claims, Austrian courts have jurisdiction over the company’s Dublin-based international subsidiary – but only for Mr Schrems to sue the company on his own behalf, not for 25,000 German, Austrian and Indian citizens who have transferred their claims to him.

“A consumer who is entitled to sue his foreign contact partner in his own place of domicile cannot invoke, at the same time as his own claims, claims on the same subject assigned by other consumers,” said Mr Bobek in an advocate-general opinion that often – but not always – is followed by ECJ judges in their final ruling.

Mr Schrems was seeking €500 damages for alleged privacy violations for himself and every claimant who joined the case, saying it was difficult if not impossible to expect individual users to file individual claims.

The Austrian man said on Tuesday he is hopeful that the court, if it follows the opinion, will set an important precedent – even without his class-action component.

“In the advocate general’s view, I can at least bring a model case at my home jurisdiction in Vienna, which may enable us to debate the illegal practices of Facebook in an open court for the first time,” said Mr Schrems.

Case origins

The Austrian’s Facebook case has its origins in a 2011 complaint filed by Mr Schrems to the Data Protection Commissioner (DPC) in Dublin. He alleged Facebook was collecting more user data than permitted under EU privacy law.

Later, after Edward Snowden’s revelations, Mr Schrems argued that European Facebook user data, transferred across the Atlantic, was being made available to US intelligence, a violation of EU citizens’ fundamental right to privacy.

In a 2015 ruling, on foot of a case taken by Mr Schrems in Dublin, the ECJ struck out the EU’s main data-transfer agreement with the US – Safe Harbor. A second case has been referred to the ECJ over other transatlantic data-transfer channels.

The Austrian case arose when Mr Schrems withdrew his original DPC complaint, accusing the Irish regulator of failing to reach a final ruling on Facebook’s data-protection policies. In Vienna, he argued that Facebook was violating his rights as a consumer, and those of seven others.

Facebook challenged the case on two fronts. First, it argued that Irish, not Austrian, courts had jurisdiction over its international headquarters in Dublin. Second, it said Mr Schrems had forfeited his consumer rights because of his professional campaign against the US company.

Class action

Tuesday’s advocate-general opinion backs the first Facebook argument, followed by Austrian courts, that Mr Schrems’s class action strategy was not permissible under EU law. Such practices could, the advocate general argued, result in a concentration of claims in favourable jurisdictions and overburden the courts there.

While such class actions had their merits, if well-designed to avoid concurrent proceedings, “it is not for the court to create such collective redress in consumer matters, but eventually for the Union legislator”.

On the second point, however, Mr Bobek disagreed with Facebook’s argument that Mr Schrems should not be viewed as a consumer given his long-running campaign against the company.

“Knowledge, experience, civic engagement or the fact of having reached certain renown due to litigation do not in themselves prevent someone from being a consumer,” said Mr Bobek in his recommendation to the ECJ.

He argued that Mr Schrems should be viewed as a consumer for the purposes of his own claims arising from the private use of his own Facebook account – although the final word rests with the Austrian supreme court.

A final ECJ ruling in the case will be given at a later date.