Europe-v-Facebook founder Max Schrems. Image: Europe-v-Facebook

Sweeping away Safe Harbour

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Max Schrems. Image: Europe-v-Facebook

24 March 2015

Niall Kitson portraitThe EU/US Safe Harbour agreement will be under scrutiny today when the European Court of Justice  will deliver a ruling on whether europe-v-facebook’s class action suit can be heard in the High Court in Dublin.

The suit, brought by privacy advocate Max Schrems on behalf of 45,000 EU-based users of the social network, says that  Facebook’s data protection practices are not in line with European law and thus should be forced to review its data gathering and retention practices. If the pressure group is successful, Facebook – and by entension any multinational – could be in for a costly revision of its terms of usage if it wants to operate in the EU.

Facebook’s defence relies on the Safe Harbour agreement between the EU and US that accepts companies that gather information from EU citizens for transfer abroad is  treated with the same care as information gathered and stored by companies based within the EU. It’s a simple principal made complicated by differing data protection regimes on either side of the Atlantic and, indeed, within the EU itself.

E-v-f’s suit hasn’t had an easy ride. The Office of the Data Protection Commissioner said Safe Harbour was a sufficient reason not to investigate Facebook’s practices. E-v-f subsequently took its case to the High Court which, in turn, referred it to the ECJ for guidance. If the ECJ rules that Safe Harbour is being respected,  e-v-f’s case is dead. If the Court says that presumption is no longer valid,  the case will be bounced back to the High Court and the suit will continue.

Chances are
Does e-v-f have a chance? Had this action been raised owing to concerns about marketing, probably no. In the context of the  PRISM revelations surrounding the accessing of US citizens’ data by the NSA, probably yes.

If Safe Harbour is to be treated as an agreement based on trust between the EU and US governments then it cannot stand. As PRISM has shown, US state actors have acted against the spirit of the agreement. If Safe Harbour is an agreement between the EU and US companies acting within EU norms to the best of their knowledge, then the defence must stand.

Is there a middle ground? I would argue Safe Harbour is best put on hold and send e-v-f’s case should be sent back to the High Court while a revised agreement can be hammered out.

EU/US trade relations are too important to compromise but the lack of respect for Safe Harbour has created a legal vacuum. If that leads to stronger controls over what information users can have collected about them, how long it can be kept and how to make sure what you delete stays deleted, Schrem will have succeeded.

But that’s another big if/then.

More as it develops.

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