Austrian privacy case against Facebook hits legal snag

Elias Hubbard
November 14, 2017

An Austrian privacy campaigner seeking to stop Facebook from transferring personal data out of the European Union has been dealt a partial setback by one of Europe's top law officers.

Mr Schrems has been locked in a long-running legal dispute with Facebook, claiming the USA tech giant collects more private data than is permitted under European Union law.

Facebook's tactic to see off this suit is to argue that Screms isn't a consumer, and so can't use those privileges to bring a case in his home court.

Today's non-binding opinion by the European Court of Justice's Advocate General relates to a case taken by Mr Schrems through the Austrian courts, in which he claims that Facebook operates in Europe with contracts that are illegal under EU consumer law.

He is now trying to sue the company's Irish division in Austrian court, not only for violating his own privacy, but the privacy of about 25,000 signatories who live in Austria, Germany and India.

Mr Bobek's opinion states that Mr Schrems' case would be limited to his own personal claim and that he is not entitled to bring a class action suit against the USA tech giant.

Class action suits, in which many people sue together, are not as common in Europe as they are in the USA, but Schrems argued that individual Facebook users could not afford the legal costs of individually fighting their cases against the Silicon Valley tech giant.

"The carrying out of activities such as publishing, lecturing, operating websites, or fundraising for the enforcement of claims do not entail the loss of consumer status for claims concerning one's own Facebook account used for private purposes", a press release on the opinion states (emphasis in original).

Facebook also argued that Mr Schrems' Facebook page was effectively "professional".

The Court said he had used Facebook since 2008, firstly exclusively for private purposes under a false name. But Bobek dismissed the Facebook arguments, and Schrems is free to sue the company before Austrian courts.

He used it for uploading photos, posting online and using the messenger service to chat.

The private account includes photographs, and Schrems uses his the page to post information about any lectures he delivers, as well media appearances and information his lawsuit against Facebook Ireland.

The Advocate General said that consumer status depended on the nature and the aim of the contract, ie, Mr Schrems' Facebook account, when it was agreed.

Austrian activist Max Schrems is allowed to sue the Irish subsidiary of Facebook on a personal basis but can not take a class action.

"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", the opinion notice read.

Bobek said this would allow the concentration of claims in one jurisdiction - and to "choose the place of the more favourable courts" - that could lead to overburdening some jurisdictions.

Unlike in the United States, class action suits are uncommon in Europe.

Facebook Ireland appears to have won part of an ongoing battle with Austrian privacy campaigner Max Schrems.

Mr Schrems has urged the ECJ to reject the guidance in this case.

"The opinion of the Advocate General is disappointing as it would rule out that consumers team up in cases of mass harm".

Other reports by Click Lancashire

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