Austrian Supreme Court rejects Facebook’s bid to stop a GDPR-violation lawsuit against it by privacy activist, Max Schrems

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On Tuesday, the Austrian Supreme Court overturned Facebook’s appeal to block a lawsuit against it for not conforming to Europe’s General Data Protection Regulation (GDPR). This decision will also have an effect on other EU member states that give “special status to industry sectors.”

The lawsuit was filed by Austrian lawyer and data privacy activist, Max Schrems. In the lawsuit, he has accused Facebook of using illegal privacy policies as it forces users to give their consent for processing their data in return for using the service. GDPR does not allow forced consent as a valid legal basis for processing user data.

Schrems said in a statement, “Facebook has even blocked accounts of users who have not given consent. In the end users only had the choice to delete the account or hit the ‘agree’ button–that’s not a free choice; it more reminds of a North Korean election process. Many users do not know yet that this annoying way of pushing people to consent is actually forbidden under GDPR in most cases.

Facebook has been trying to block this lawsuit by questioning whether GDPR-based cases fall under the jurisdiction of courts. According to Facebook’s appeal, these lawsuits should be handled by data protection authorities, Irish Data Protection Commissioner (DPC) in this case. Dismissing Facebook’s argument, this landmark decision says that any complaints made under Article 79 of GDPR can be reviewed both by judges and data protection authorities.

This verdict comes as a sigh of relief for Schrems, who has to wait for almost 5 years to even get this lawsuit to trial because of Facebook’s continuous blockade attempts. “I am very pleased that we were able to clarify this fundamental issue. We are hoping for a speedy procedure now that the case has been pending for a good 5 years,” Schrems said in a press release.

He further added, “If we win even part of the case, Facebook would have to adapt its business model considerably. We are very confident that we will succeed on the substance too now. Of course, they wanted to prevent such a case by all means and blocked it for five years.

Previously, the Vienna Regional Court did give the verdict in Facebook’s favor declaring that it did not have jurisdiction and Facebook could only be sued in Ireland, where its European headquarters are. Schrems believes that this verdict was given because there is “a tendency that civil judges are not keen to have (complex) GDPR cases on their table.” Now, both the Appellate Court and the Austrian Supreme Court have agreed that everyone can file a lawsuit for GDPR violations.

Schrems original idea was to make a “class action” style suit against Facebook by allowing any Facebook user to join the case. But, the court did not allow that, and Schemes’ was limited to bring only a model case to the court.

This is Schrems’ second victory this year in the fight against Facebook. Last month, the Irish Supreme court dismissed Facebook from stopping the referral of privacy case regarding the transfer of EU citizens’ data to the United States. The hearing of this case is now scheduled to happen at the European Court of Justice (ECJ) in July.

Schrems’ eight-year-long battle against Facebook

Schrems’ fight against Facebook started way before we all realized the severity of tech companies harvesting our personal data. Back in 2011, Shcrems’ professor at Santa Clara University invited Facebook’s privacy lawyer Ed Palmieri to speak to his class. Schrems was surprised to see the lawyer’s lack of awareness regarding data protection laws in Europe. He then decided to write his thesis paper about Facebook’s misunderstanding of EU privacy laws.

As a part of the research, he requested his personal data from Facebook and found it had his entire user history. He went on to make 22 complaints to the Irish Data Protection Commission, in which he accused Facebook of breaking European data protection laws. His efforts finally showed results, when in 2015 the European Court of Justice took down the EU–US Safe Harbor Principles.

As a part of his fight for global privacy rights, Schrems also co-founded the European non-profit noyb (None of Your Business), which aims to “make privacy real”. The organization aims to introduce ways to execute privacy enforcement more effectively. It holds companies accountable who fail to follow Europe’s privacy laws and also takes media initiatives to support GDPR.

Looks like things hasn’t been going well for Facebook. Along with losing these cases in the EU, in a revelation yesterday by the WSJ, several emails were found that indicate Mark Zuckerberg’s knowledge of potentially problematic privacy practices at the company.

You can read the entire press release on NOYB’s official website.

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