Thursday 21 February 2019

Judges urged to halt data transfers referral

Data Protection Commissioner (DPC) Helen Dixon is opposing the appeal and attended for its opening yesterday before the five-judge court. Photo: Frank McGrath
Data Protection Commissioner (DPC) Helen Dixon is opposing the appeal and attended for its opening yesterday before the five-judge court. Photo: Frank McGrath

Tim Healy

The Court of Justice of the EU (CJEU) has been asked to decide "immensely" important issues about the validity of EU-US data transfers based on "extraordinary and incorrect findings" by the Irish High Court about the US legal system, Facebook has argued before the Supreme Court.

The Supreme Court has begun hearing Facebook's unprecedented appeal, listed for three days, aimed at halting the High Court referral to the CJEU. Data Protection Commissioner (DPC) Helen Dixon is opposing the appeal and attended for its opening yesterday before the five-judge court.

Facebook disputes the High Court's view that the DPC had raised "well-founded" concerns, including about "mass indiscriminate processing" of data by US government agencies under the PRISM and Upstream programmes authorised there.

Facebook also disputes the US lacks a comprehensive data protection code.

Paul Gallagher SC, for Facebook, said it was "no exaggeration" to say the case was of "immense" importance, not just for Facebook, but for the GDP of the EU as virtually every trade transaction between the EU and US has some digital element involving data transfer.

He said the referral to the CJEU was made by the High Court on a basis tantamount to making findings that US law breaches the essence of data privacy rights of EU citizens. These were "extraordinary and incorrect findings" about the legal system of a foreign country, counsel said.

The High Court particularly failed to have regard to the Privacy Shield decision under which the European Commission approved the use of EU-US data transfer channels, he said. There was no need for a reference because the Privacy Shield decision was binding, he argued. The CJEU should not be asked to make decisions of enormous consequence on foot of "findings" Facebook considered "potentially very damaging" and inconsistent with the Privacy Shield decision. The appeal concerns an October 2017 High Court judgment by Ms Justice Caroline Costello and her subsequent referral in May 2018 of issues for determination by the CJEU.

The US government is involved in the appeal as an assistant to the court on legal issues. It maintains US law provides adequate protections for EU citizens' data privacy.

Ms Justice Costello's judgment was given in proceedings brought by the DPC arising from complaints by Austrian lawyer Max Schrems that the transfer of his personal data by Facebook to the US breached his data privacy rights as an EU citizen.

The appeal will resume today.

Irish Independent

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