Court Strikes Down Facebook Appeal In Landmark Privacy Case

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

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Case is referred ‘immediately’ to the European Court of Justice

Ireland’s High Court has struck down a Facebook request to delay a data privacy case’s referral to the top European Union court, a move that could have wide-ranging implications for thousands of companies that transfer personal information from the EU to the US.

Facebook on Monday asked the High Court to delay the case’s referral to the European Court of Justice (ECJ) in order to give Ireland’s Supreme Court time to decide on Facebook’s appeal of the transfer decision.

On Wednesday High Court Judge Caroline Costello refused Facebook’s request,saying the matter was sufficiently urgent not to put off sending the matter to the ECJ.

“I am of the opinion that the court will cause the least injustice if it refuses any stay and delivers the reference immediately to the Court of Justice,” Costello said in her decision.


Delaying tactics

Facebook said it would continue its appeal with the Supreme Court even without the stay it had asked for.

The company said it was “disappointed” not to have been granted the stay.

Costello criticised Facebook for its efforts to delay the referral, and noted that the grounds of its appeal – arguing that the upcoming General Data Protection Regulation (GDPR) rules, which take effect on 25 May, make the case irrelevant – have only been mentioned “as an aside” in the firm’s previous discussions during the trial.

“The fact that the point is only now being raised gives rise to considerable concern as to the conduct of the case by Facebook and the manner in which it has dealt with the court,” Costello wrote.

She said that in view of Facebook’s GDPR argument, the delay meant the case potentially “gravely” weighed against the parties who brought the case, privacy advocate Max Schrems and the Irish Data Protection Commissioner. “I do not propose to exacerbate this potential prejudice any further,” she wrote.

Schrems said on Twitter that the ruling was a “slap” for Facebook, with the judge “accusing them of deliberately delaying the procedure”. He has previously argued the appeal was groundless under Irish law.

Facebook’s manoeuvres are an effort to delay or avert a potentially far-reaching ECJ ruling on the way data is transferred between the EU and the US.

The ruling could force changes to the legal instruments used by Google, Apple and many other firms to transfer Europeans’ personal information for processing under US law, which has fewer safeguards than in the EU.

Surveillance exposure?

Critics also argue such transfers expose Europeans’ data to collection by US mass surveillance regimes – the grounds for the ECJ’s decision in 2015 to strike down a 15-year-old instrument called Safe Harbour that previously permitted EU-US data transfers.

ECJ decisions can take years, but the 2015 ruling came only a year after the court took up the case.

The short lapse of time was an indication of the urgency around data transfer issues in light of Edward Snowden’s disclosures of US mass surveillance, which began in 2013.

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