Schrems settles action over DPC probe into Facebook's US data transfers

Max Schrems, an Austrian lawyer based in Vienna, claimed the DPC’s own volition inquiry had the effect of suspending the DPC's investigation into his complaints
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Ann O'Loughlin

A High Court judge has said he will give judgment as soon as possible on Facebook’s challenge to the Data Protection Commissioner’s draft decision to enquire into, and suspend, data transfers by Facebook Ireland to the US.

The DPC investigation, and the suspension, remain stayed pending Mr Justice David Barniville’s judgment.

A separate action by privacy and data rights activist Max Schrems, which was also aimed at halting the probe, for very different reasons, was due for hearing at the Commercial Court on Wednesday but the court was told it had been resolved.

Mr Schrems took his action because he was concerned the DPC was engaged in a process that might affect the investigation and outcome of his own complaints about Facebook's handling of his personal data.

Right to be heard


Mr Schrems, an Austrian lawyer based in Vienna, claimed the DPC’s own volition inquiry had the effect of suspending the DPC's investigation into his complaints, originally made in 2013 and reformulated in 2015, and breaches his rights to be heard.

He also claimed the DPC's own volition inquiry would fail to examine certain bases upon which Facebook is trying to rely on to legitimise EU-US data transfers.

The resolution of his proceedings over the DPC’s own volition inquiry was reached on Wednesday on the basis of correspondence exchanged between lawyers for the DPC and Mr Schrems concerning how his complaint will be addressed.

The only outstanding issue in his proceedings relates to legal costs and the sides have agreed the costs issues can be decided by Mr Justice Barniville following the delivery of his judgment in Facebook’s case.

Facebook challenge

Facebook initiated those proceedings last August after the DPC, Ireland's supervisory authority for data protection rights, informed Facebook Ireland, the EU HQ of Facebook and Instagram platforms, of her preliminary draft decision that personal data should not be transferred out of the EU to its American parent Facebook Inc.

The DPC said the data transfers were made in circumstances which fail to guarantee a level of protection to data subjects equivalent to those provided for in EU law.
The DPC opened the inquiry following a judgement from the Court of Justice of the European Union handed down last July.


On Wednesday, Eoin McCullough SC, with James Doherty SC and Sean O’Sullivan, for Mr Schrems, said, because the inquiry into Mr Schrems’ complaint is to proceed as outlined in a letter from the DPC of January 12th, 2021, the court did not have to resolve the issues in Mr Schrems case apart from costs issues. The sides had agreed the costs issues could be addressed after the court gave judgment in Facebook’s separate challenge, he said. Michael Collins SC, with Cian Ferriter SC, consented.

Mr Justice Barniville agreed to adjourn the Schrems case until after he has delivered judgment on the Facebook case.

He said he hoped to give judgment as soon as possible, but he had a number of other judgments to prepare and deliver first.

Earlier, in relation to issues raised during the hearing of the Facebook case last month, the judge noted he had received affidavits on behalf of the DPC and Facebook relating to the number of own volition inquiries undertaken by the DPC since 2018.

The judge said he needed clarification of a number of matters in that regard but they may not be material to his judgment.

The court heard 83 own volition inquiries had been undertaken, of which 27 were cross-border inquiries and that Facebook was a party to 11 of those.

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