Irish Supreme Court agrees to hear Facebook data transfer appeal

31 Jul 2018

Facebook Dublin offices. Image: photocritical/Shutterstock

An unprecedented appeal by Facebook over a decision made by the High Court is set to be heard.

Today (31 July), the Supreme Court in Ireland announced it would hear an unprecedented appeal by Facebook over a previous decision made by a High Court judge to refer some issues around EU-US data transfer channels to the European Court of Justice (CJEU).

The five-judge panel said it would allow the appeal to be heard as a matter of urgency before the end of 2018, according to The Irish Times

Last May, High Court Justice Caroline Costello directed an immediate referral of 11 different issues to the CJEU concerning the validity of EU Commission decisions approving data transfer channels, known as standard contractual clauses.

Data transfer questions

The referral raises some major questions around EU legal issues, including whether or not the High Court was correct in finding that there was “mass indiscriminate processing of data” by US government agencies under the Prism and Upstream programmes, which have authorisation in the US.

As well as other grounds for appeal, including allegations that the High Court made some mistakes in its assessment of US law, the Supreme Court will also be asked whether or not there is any entitlement to appeal a High Court reference decision at all. There can be certain cases where a sizeable dispute as to whether an appeal is permissible can occur.

Clock is ticking

Justice Frank Clarke explained that if Facebook persuades the Supreme Court to make certain orders in its appeal, these orders would only be useful if the Supreme Court makes a judgement far enough in advance of the potential CJEU hearing.

Arguments posited by the Data Protection Commissioner and Max Schrems that Facebook could not try and have the Supreme Court reverse certain disputed findings of the High Court, including findings about the extent of data privacy protections in the US for citizens of the EU, were rejected.

Facebook Dublin offices. Image: photocritical/Shutterstock

Ellen Tannam was a journalist with Silicon Republic, covering all manner of business and tech subjects