Facebook is trying to block Schrems II privacy referral to EU top court

Facebook’s lawyers are attempting to block a High Court decision in Ireland, where its international business is headquartered, to refer a long-running legal challenge to the bloc’s top court.

The social media giant’s lawyers asked the court to stay the referral to the CJEU today, Reuters reports. Facebook is trying to appeal the referral by challenging Irish case law — and wants a stay granted in the meanwhile.

The case relates to a complaint filed by privacy campaigner and lawyer Max Schrems regarding a transfer mechanism that’s currently used by thousands of companies to authorize flows of personal data on EU citizens to the US for processing. Though Schrems was actually challenging the use of so-called Standard Contractual Clauses (SCCs) by Facebook, specifically, when he updated an earlier complaint on the same core data transfer issue — which relates to US government mass surveillance practices, as revealed by the 2013 Snowden disclosures — with Ireland’s data watchdog.

However the Irish Data Protection Commissioner decided to refer the issue to the High Court to consider the legality of SCCs as a whole. And earlier this month the High Court decided to refer a series questions relating to EU-US data transfers to Europe’s top court — seeking a preliminary ruling on a series of fundamental questions that could even unseat another data transfer mechanism, called the EU-US Privacy Shield, depending on what CJEU judges decide.

An earlier legal challenge by Schrems — which was also related to the clash between US mass surveillance programs (which harvest data from social media services) and EU fundamental rights (which mandate that web users’ privacy is protected) — resulted in the previous arrangement for transatlantic data flows being struck down by the CJEU in 2015, after standing for around 15 years.

Hence the current case being referred to by privacy watchers as ‘Schrems II’. You can also see why Facebook is keen to delay another CJEU referral if it can.

According to comments made by Schrems on Twitter the Irish High Court reserved judgement on Facebook’s request today, with a decision expected within a week…

Irish #HighCourt reserves judgement on stay for #SCC / #PrivacyShield reference to @EUCourtPress – judgement expected within a week. DPC and we argued against a stay. Facebook wants to stop the reference. #IfYouCantWinDelay https://t.co/U4ITKEBAEg

— Max Schrems (@maxschrems) April 30, 2018

Facebook’s appeal is based on trying to argue against Irish case law — which Schrems says does not allow for an appeal against such a referral, hence he’s couching it as another delaying tactic by the company:

#Facebook now appeals the #HighCourt decision to refer to the @EUCourtPress on the #SCCs and #PrivacyShield – challenging Irish case law (Campus Oil) that no such appeal exists in Ireland.. #Pay2Delay #5yearsSincePRISMcomplaint #PRISM #NSA pic.twitter.com/5J0jZpEKyR

— Max Schrems (@maxschrems) April 30, 2018

We reached out to Facebook for comment on the case. At the time of writing it had not responded.

In a statement from October, after an earlier High Court decision on the case, Facebook said:

Standard Contract Clauses provide critical safeguards to ensure that Europeans’ data is protected once transferred to companies that operate in the US or elsewhere around the globe, and are used by thousands of companies to do business. They are essential to companies of all sizes, and upholding them is critical to ensuring the economy can continue to grow without disruption.

This ruling will have no immediate impact on the people or businesses who use our services. However it is essential that the CJEU now considers the extensive evidence demonstrating the robust protections in place under Standard Contractual Clauses and US law, before it makes any decision that may endanger the transfer of data across the Atlantic and around the globe.