Vienna digital rights group takes court action over DPC complaints progression

A digital rights group has launched a High Court challenge over the Data Protection Commissioner’s (DPC) alleged failure to progress complaints made in 2018 about alleged unlawful processing of personal data by social media platforms.

The action, by the not for profit NOYB – European Centre for Digital Rights, based in Vienna, is against the DPC as the supervisory authority in respect of General Data Protection Regulation (GDPR) within the State. The group is chaired by digital rights activist Max Schrems.

Investigations

The group claims the DPC has breached data protection and GDPR obligations by failing to progress or complete investigations into complaints made about WhatsApp and Instagram.

When the matter came before Mr Justice Charles Meenan on Monday, he was told the commissioner had in correspondence rejected NOYB’s assertions of delay in investigating the complaints.

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The complainants allege the social media platforms data controllers are unlawfully processing their personal data in breach of the GDPR and data protection laws.

The complaints relate to how the platforms’ data controllers, under articles of GDPR, purport to rely on consent of data subjects to process personal data.

The GDPR is an EU regulation on data protection and privacy which aims primarily to give individuals control over their personal data.

The complaint regarding WhatsApp was made to the German authorities. The complaint concerning Instagram, owned by Facebook, was made to the Belgian authorities.

Represented by Eoin McCullough SC, NOYB says, because the companies operating the two platforms, WhatsApp Ireland Ltd and Facebook Ireland, are registered in Ireland, the Irish commissioner must conduct the investigation.

Counsel said the complaints by two individuals were made in 2018, were filed on the complainants behalf by NOYB and were referred to the commissioner by the Belgian and German authorities.

Process

NOYB’s case is the commissioner has delayed in completing the investigation within a reasonable period, counsel said.

No reason has been given for the delay, counsel said. The investigation of such complaints is an eight-stage process and the complaints have only gone through the first two stages, he said.

In its action, NOYB claims the commissioner has failed to carry out an investigation within a reasonable period as required under Article 57 of the GDPR and section 113 of the 2018 Data Protection Act.

It wants orders for the commissioner to complete the investigation within whatever time directed by the court, and if necessary, to refer the case to the Court of Justice of the European Union.

Permission to bring the action was granted, on an ex-parte basis, by Mr Justice Meenan who returned it to September.