Wednesday 24 July 2019

Facebook judge makes 'friends' with US but 'unfriends' Ibec

Irish Data Protection Commissioner Helen Dixon
Irish Data Protection Commissioner Helen Dixon

Adrian Weckler and Tim Healy

The High Court has accepted the US government as a "friend of the court" or "amicus" in an ongoing case involving the Irish data protection authority and Facebook.

However, applications by employers group Ibec and the Irish Council for Civil Liberties to be joined to the case were rejected.

The case has arisen after Irish Data Commissioner Helen Dixon said her office has doubts over the legality of so-called "model contract clauses", data transfer protocols relied upon by many businesses in their transactions with US firms.

Ms Dixon, who is the primary European data regulator of the world's biggest social media firms because of their Irish bases, is seeking to refer the question to the European Court of Justice.

Any decision to strike down model contract clauses down could leave thousands of European companies in limbo over their data transfers to the US despite last week's 'Privacy Shield' agreement between the EU and the US.

In court yesterday Mr Justice Brian McGovern said he was satisfied the US government has a "significant and bona fide interest" in the outcome of the case.

He was giving judgment on applications by the US government and several other parties to be joined as amicii curiae (literally friends of the court) to the action by the Irish Data Protection Commissioner aimed at deciding the validity of channels, known as Standard Contractual Clauses (SCCs), being used for daily EU-US data transfers.

An amici curiae is not a party to a legal case, but is recognised has having a particular interest or understanding of the case at issue. The Data Commissioner wants the validity of the channels referred by the High Court to the Court of Justice of the EU (CJEU) for determination.

Unless a party has been joined by the Irish High Court, it cannot participate in any reference to the CJEU.

The judge said at issue is the assessment, as a matter of EU law, of the US' law governing transfer of EU citizens' data to the US.

The imposition of restrictions on the transfer of such data would have potentially considerable adverse effects on EU-US commerce, could affect US companies significantly and he was satisfied the US could bring "added value" to the case.

He also joined US-based data privacy watchdog, EPIC (Electronic Privacy Information Centre), saying he considered it could offer a "counter-balancing perspective" from that of the American government.

Also joined to the case was the Business Software Alliance (BSA), a global trade association whose application was supported by the American Chamber of Commerce Ireland.

The BSA's members include businesses that stand to be affected buy any ruling, including internet giants such as Apple and Intel, as well as smaller entities, and he considered it could provide relevant views not otherwise available to the court.

Joining Digital Europe, the judge said it is the principal representative body on matters for EU policy for members of the digital technology industry in Europe.

He refused to join the Irish Business & Employers Confederation, the Irish Human Rights & Equality Commission (IHREC), American and Irish Civil Liberties organisations, Electronic Frontier Foundation or UK-based data privacy campaigner Kevin Cahill.

Irish Independent

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