Thursday 5 December 2019

Europe v Facebook campaigner's legal bill limited to €10,000 if challenge lost, court hears

Austrian citizen Max Schrems
Austrian citizen Max Schrems

PRIVACY campaigner Max Schrems will have to pay no more than €10,000 in legal costs if he loses his complaint about the mass transfer of data by Facebook Ireland to the US intelligence services, a judge ruled today.

In what was Ireland's first "protective costs order", Mr Justice Gerard Hogan applied a €10,000 limit to costs of the Austria-based law student's legal challenge to the Data Protection Commissioner's refusal to deal with a complaint over the data transfer issue.

The judge said given rulings on costs matters in similar cases over important constitutional issues, he was unlikely to make a costs order against Mr Schrems in any event. 

But the judge said that rather than give a protective costs order for €55,000 - as sought by the Data Commissioner in recognition of the amount Mr Schrems has obtained through a fund raising campaign - he would limit it to €10,000.

The judge said as a post-graduate law student in his 20s, on the cusp of his career, Mr Schrems was somebody who was very likely to be exercised by the prospect of legal costs. 

The judge was also conscious that the €55,000 from public fund raising was not entirely under Mr Schrems control and that it was also being used to fund 22 other similar complaints he made over data protection.

Last month, the judge referred Mr Schrems' challenge to the European Court of Justice (ECJ) for re-evaluation given that much has happened since an agreement on data transfer between the EU and the US, known as the Safe Harbour agreement, was approved in 2000.

In his High Court action, Mr Schrems said the Data Commissioner was wrong to find his complaint unsustainable in law because the European Commission had determined Safe Harbour ensured an adequate level of data protection. 

The complaint was lodged following revelations made by former US security contractor, Edward Snowden, about the manner in which US authorities access personal data of non-US citizens on a mass and undifferentiated basis.  

Mr Schrems is part of the "Europe v Facebook" campaign which raised funds for him to make the complaint.

Following the judge's ruling that the matter should be referred to the ECJ, Digital Rights Ireland (DRI), an organisation which champions civil rights in the digital age, applied to him to be joined as an "amicus curiae", or friend of the court, for the ECJ stage of the case.

Mr Schrems opposed joining the DRI because of possible legal cost implications for him while the Data Protection Commissioner was neutral.

Today, Mr Justice Hogan said he had reluctantly concluded that he should join DRI as an amicus but he said he would not permit the organisation to add additional questions to the reference which he had already decided should be made to the ECJ.

To do so would be to radically alter the nature and scope of the existing proceedings and would also require that the Attorney General be joined to them which would involve additional costs and delay, he said.

In his previous ruling, the judge said that given the general novelty and practical importance of the issues raised by Mr Schrems, which have considerable practical implications for all 28 EU member states, it was appropriate that this question should be determined by the ECJ.

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