Max Schrems: Advocate general ‘telling Irish DPC again to just do its job’

19 Dec 2019

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Max Schrems suffered a major blow in his war with Facebook after the CJEU’s advocate general backed the social network’s data transfer activity.

Privacy activist Max Schrems’ years-long battle with Facebook has hit a major stumbling block after the advocate general of the Court of Justice of the EU (CJEU) advised a ruling in favour of the social network. While not a final decision, the opinions of the advocate general – in this case Henrik Saugmandsgaard Øe – are typically followed in the ruling.

The advocate general said that Facebook’s sharing of data on its European users across to the US and elsewhere was within the company’s rights and not an infringement to users’ privacy rights.

“Standard contractual clauses for the transfer of personal data to processors established in third countries is valid,” he said in his opinion, published today (19 December). He added that the tribunal in this case should not take into account the separate Privacy Shield issue.

“Nevertheless, the advocate general sets out, in the alternative, the reasons that lead him to question the validity of the Privacy Shield decision in the light of the right to respect for private life and the right to an effective remedy,” the release added.

Schrems’ legal battle with Facebook goes as far back as 2011 when he lodged 22 complaints with the Irish Data Protection Commissioner (DPC) about alleged privacy violations carried out by the company.

Schrems ‘generally happy’

In 2015, Schrems’ actions saw the previous Safe Harbour deal, which could allow the free transfer of data between the EU and US, ruled invalid, leading to the establishment of Privacy Shield.

Speaking following the advocate general’s decision today, Schrems said he was “generally happy” with the advocate general’s opinion as it’s “in line with our legal arguments”.

He added that both he and the privacy non-profit Noyb – where he is an honorary chair – believe the advocate general is “now telling the Irish Data Protection Authority again to just do its job”.

“After all, the Irish taxpayer may have to pay up to €10m in legal costs for the DPC delaying this case in the interest of Facebook,” he said.

“The opinion makes clear that DPC [Helen Dixon] has the solution to this case in her own hands: she can order Facebook to stop transfers tomorrow. Instead, she turned to the CJEU to invalidate the whole system. It’s like screaming for the European fire brigade, because you don’t know how to blow out a candle yourself.”

Judges on the case are expected to make a ruling in the coming months.

Colm Gorey was a senior journalist with Silicon Republic