Facebook Moves To Block Privacy Case From Reaching Top EU Court

Matt Broersma is a long standing tech freelance, who has worked for Ziff-Davis, ZDnet and other leading publications

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A ruling by the European Court of Justice could disrupt transatlantic data transfers for thousands of companies

Facebook on Monday moved  to block a significant data privacy case from being referred to the top European court with a last-minute appeal, which the Irish High Court said it would rule on within the next few days.

The move was an effort to evade a potential ban on the legal instrument it uses, alongside Google, Apple and thousands of other companies, to transfer Europeans’ personal data to the US.

An earlier case brought against Facebook by Max Schrems, the same privacy activist behind the current challenge, led to the 15-year-old data transfer instrument known as Safe Harbour being invalidated, with officials saying it potentially exposed Europeans’ data to mass data collection by US authorities.

Earlier this month the High Court of Ireland, where Facebook has the headquarters for most of its operations outside the US, ordered the case to be referred to the European Court of Justice (ECJ), for an assessment on whether current data transfer instruments are legal.

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Facebook chief executive Mark Zuckerberg

Data disruption

The top EU court was asked to give a ruling on the standard contractual clauses (SCCs) that are at issue in the current Facebook case, as well as the EU-US Privacy Shield, the controversial successor to Safe Harbour.

Such a ruling could potentially unseat the arrangements for data transfer that are currently in place, leading to a level of disruption on the same scale as the Safe Harbour decision in 2015.

Seeking to avert the referral, Facebook on Monday asked the High Court to delay it to allow Ireland’s Supreme Court to decide whether it would accept an appeal.

Facebook is seeking an accelerated referral to the Irish Supreme Court so that the question of an appeal can be decided in days, rather than months, Reuters reported.

A Facebook lawyer said one of the grounds for the appeal was whether the introduction of the EU’s General Data Protection Regulation (GDPR) would render the case irrelevant.

A lawyer for Ireland’s Data Protection Commissioner said there was no precedent in the country for such an appeal, and that as such the move was a mere delaying tactic by Facebook.

‘Essential’ instrument

Schrems said on Twitter that the High Court had reserved judgement on the stay and was expected to rule within a week.

“We argued against a stay,” he wrote. “Facebook wants to stop the reference.”

He said he agreed with the Data Protection Commissioner that “no such appeal exists in Ireland”.

Facebook had not respond to a request for comment as of the time of writing.

Following an earlier ruling in October, Facebook issued a statement saying that standard contractual clauses are “essential to companies of all sizes, and upholding them is critical to ensuring the economy can continue to grow without disruption”.

It said at the time that “robust protections” were in place under the clauses and US law, and this should be taken into account by the ECJ.

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