Facebook Ireland fights Max Schrems over class action suit

Austrian lawyer seeking court permission to take privacy case against social network

Facebook Ireland has rejected claims by Austrian lawyer Max Schrems that he is a private consumer and entitled to take a class action case against the social network.

In parallel to the ongoing case in the High Court in Dublin, lawyers for Mr Schrems and Facebook Ireland appeared on Wednesday at the Court of Justice of the European Union (CJEU) in Luxembourg, over the admissibility of a worldwide "privacy class action" against the social network by the Austrian.

Unlike the Irish case, which deals mainly with US mass surveillance, the Austrian case is focused on the commercial misuse of personal data by Facebook.

In August 2014, Mr Schrems, a Facebook user since 2008, brought a lawsuit in Vienna against Facebook Ireland over commercial violations of EU privacy laws. Since then, at least 25,000 other Facebook users have assigned their rights to him in order to form a so-called “Austrian style class action”.


‘Professional litigant’

However, in July 2015, the regional court in Vienna ruled Mr Schrems is a “professional litigant” and should instead sue Facebook where it is headquartered – in Dublin. Wednesday’s hearing at Europe’s highest court is the end result of referrals and appeals against that decision.

At the centre of the case are two questions. Firstly, is Mr Schrems a private individual with consumer status? Facebook contends that he is not because, it says, he used a public Facebook page to promote his activities. Secondly, can he bring a class action case in Austria even though many of the other claimants are based elsewhere in the EU?

Herwig Hofmann, lawyer for Mr Schrems, argued that his client cannot lose his consumer status even though he set up a "public" Facebook page. Further activities are completely irrelevant, said Mr Hofmann, adding that even the "Europe Versus Facebook" public page had two other administrators in addition to Mr Schrems. They are totally separate contracts, he said. For example, the European Commission's Facebook page is not the private account of the staff member who set it up or administers it, said Mr Hofmann.

Even the intention to make a profit is not necessarily a “professional” activity, he said. “There is an effort here to reverse the role of victim and perpetrator . . . by Facebook, one of the biggest companies in the world,” said Mr Hofmann.

Social agenda

Nikolaus Pitkowitz, for Facebook Ireland, argued that someone organising consumer protection is not a consumer themselves. He also took issue with Mr Schrems's claim that he had two separate contracts with Facebook – one for his private profile and one for the public page.

According to Mr Pitkowitz, Mr Schrems mostly uses his public page.

“He acts as a data protection activist, it is clearly professional,” said Mr Pitkowitz. “The applicant is using media interest in his case to advance his career and increase sales of his book.” He added that consumer privilege doesn’t extend to professional actors regardless of social agenda.

Mr Hofmann argued that Mr Schrems is a good example of how jurisdiction can change without any intervention from the claimant. Mr Schrems originally set up his account while studying in California.

“Facebook then unilaterally transferred all its international contracts to its Ireland subsidiary,” said Mr Hofmann. “Preventing assigned claims is unjustifiable intervention. If consumers are prevented from bundling their claims, how many courts would have to deal with this and how many consumers would even make the claims?”

The Advocate General will issue his opinion November 7th. This opinion is not legally binding on the court, but, in practice, the judges usually follow his advice. The final judgment by the CJEU is expected by the end of the year.