The Court of Justice of the European Union (CJEU), the most superior court of the EU, will be deciding on the issue of the transfer of Europeans’ personal data to the United States. If the transfer is made, all the data will be accessible to the NSA.
The main issue that needs to be weighed is the decision of the Irish Data Protection Commissioner who declined an investigation into the social network’s transfer of the European data to the American data centres. The reasoning of the Commissioner in making this decision was that it did not violate any law under the Safe Harbor Agreement between the EU and the US. The agreement was made in the year 2000 and was designed to prevent accidental information disclosure or loss. If the Commissioner’s reasoning was right, he would be free from the duty to investigate the matter further.
The case was brought to the courts by Max Schrems – the leader of the ‘Europe v Facebook’ group and Austrian Law student. Previously, Schrems (pictured below) has used the Irish data protection office to force Facebook to hand over more user data as when its users desire. The Commissioner exercised his power to stop Schrems’ most recent case by calling it ‘frivolous and vexatious’. However, Schrems has applied for judicial review to challenge the legality of the decision. The doctrine of judicial review is in simple terms, when an individual asks the courts to review the decision made by a public body to ensure that it is within the confines of the law and whether the public body has acted within their powers given by the law. The application of JR has resulted in the judgement of Mr Justice Hogan.
Schrems is looking to sue the American company in Ireland due to the generous tax discounts Ireland has been giving to multi national corporations such as Apple, Google and Facebook. The tax breaks are what have made Ireland the choice to be the international base and headquarters for these companies.
The CJEU will not be ruling on the legality of PRISM nor on Facebook’s actions but these will have a fundamental concerns in the case at hand. What CJEU will decide on is whether the Commissioner’s decision was right in declining further investigation.
Mr Justice Hogan’s Judgement
The judgement by Mr Justice Hogan pointed out a few major arguments. Among them that the Safe Harbor agreement may be incompatible with Article 8 of the European Convention of Human Rights. Article 8 states the right to privacy and family life.
The first point by Hogan was his blunt disagreement with the statement that Schrems was a vexatious complainer and explaining that with the recent fiasco with Edward Snowden, the concerns of Schrems was justified. Hogan further stated that Schrem was entitled to look into the state of affairs regarding his data being transferred to a country where his information will only be given limited protection.
Hogan however, did say that the Commissioner did make the right decision to refer to the Safe Harbor Agreement but was wrong when the Commissioner used the document as a reason to disregard the matter all together. Therefore, the question for the CJEU to decide on now is – Is the watchdog “absolutely bound” by the European Commission’s view 14 years ago that the U.S. adequately protects personal data, or “alternatively, may the office holder conduct his or her own investigation on the matter in the light of factual developments in the meantime since that Commission Decision was first published?”
Among the comments by Schrems regarding the judgement, he explained that the ‘frivolous’ complaint reasoning was an excuse by the Commissioner and he was at most, glad with the judgement. He further stated that the decision by the CJEU will affect all the operations of the American companies and expressed sympathy for them in their tough spot.