Monday 16 September 2019

Data chief promises 'speedy' investigation of Facebook case

Max Schrems' action of 'international importance', says Judge

Austrian privacy activist Max Schrems speaks to the media outside the High Court following yesterday’s case. Photo: Courtpix
Austrian privacy activist Max Schrems speaks to the media outside the High Court following yesterday’s case. Photo: Courtpix

Tim Healy

IRELAND'S Data Protection Commissioner has told the High Court she will speedily investigate a complaint by Austrian student Max Schrems alleging Facebook Ireland is making personal data available to US intelligence agencies.

Mr Justice Gerard Hogan was told the investigation will proceed arising from the recent decision of the European Court of Justice (ECJ) concerning the Safe Harbour arrangement relating to transfer of personal data.

The ECJ ruled the 15-year-old Safe Harbour arrangement, which allowed about 4,500 US companies to transfer personal data to the US, violates the fundamental rights of EU citizens to privacy and data protection.

Mr Schrems had in judicial review proceedings challenged the Commissioner's 2013 refusal to investigate his complaint, made after former US National Security Agency (NSA) contractor Edward Snowden claimed Facebook and other US firms were being forced to make their personal information, including EU user data, available to US intelligence.

The Commissioner's office said Safe Harbour, and its implementation, was solely a matter for the European Commission.

Mr Justice Hogan had referred issues concerning the validity of Safe Harbour to the ECJ and, following that court's ruling, the matter returned before the judge to decide how the case should proceed.

Having heard from the sides, the judge said former Commissioner Billy Hawkes had considered "his hands were tied" as a result of Safe Harbour and, in that context, he (Hawkes) found the complaint frivolous and vexatious and doomed to fail. There was no dispute the case raised major issues of Irish and EU law, the judge said.

Arising from the ECJ decision, Mr Hawkes's successor, Helen Dixon, was now consenting to orders quashing the 2013 refusal and remitting the matter for consideration by her, the judge noted.

It is clear, under EU law, the Commissioner is obliged to investigate the complaint and the court had no doubt she would do so, the judge said.

Mr Justice Hogan said Mr Schrems was clearly entitled to his legal costs of this case of "transcendent international importance", involving "possibly one of the most important decisions" of the ECJ in recent years.

Pending payment of the full costs to Mr Schrems, he is to get a payment out of €10,000 towards travel and other costs.

Noel Travers SC, for Mr Schrems, said his client was concerned the investigation might be "long-fingered" in the hope there might be a new Safe Harbour arrangement.

Mr Schrems made the complaint three years ago, was concerned the transfers of data are continuing and there was no guarantee, even if his complaint was upheld, the data would be returned, counsel said.

Paul Anthony McDermott SC, for the Commissioner, said there was no question of the investigation being "long-fingered". Any delay to date could not be attributed to the Commissioner who would investigate in line with what the High Court and ECJ had said.

Irish Independent

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