Austrian privacy case against Facebook hits legal snag

Postado Novembro 14, 2017

Bobek was asked to assess Schrems' case by the Supreme Court in Austria.

Though the November 14 decision is not available in English, a press release on the case says Maximilian Schrems lodged his complaint against Facebook Ireland in his home country of Austria.

Schrems is pursuing Facebook over claims the company violated his privacy, by among other things, sharing his data with USA intelligence services.

A doctoral candidate specializing in information-technology law and data-protection law, Schrems has used Facebook since 2008.

It was pointed out that since taking the case Schrems has published two books, delivered lectures, registered numerous websites, won awards and founded the association Verein zur Durchsetzung des Grundrechts auf Datenschutz.

Mr Schrems had been seeking to claim 500 euros ($586; £448) in damages per person for about 25,000 people.

Shrems has been powerful voice on behalf of Europeans in opposing the transfer of personal data by Facebook's EU headquarters in Dublin to its USA base.

The Advocate General in Europe's highest court has said a privacy campaigner is entitled to sue Facebook Ireland through the Austrian courts.

As for Facebook questioning Schrems status as a consumer eligible to bring such a claim, the advocate-general noted that he originally signed up to Facebook as a consumer and only later added a professional account. But Bobek dismissed the Facebook arguments, and Schrems is free to sue the company before Austrian courts.

Addressing a hypothetical case where the nature and the aim of the contract are both private and professional, Bobek said "consumer status may still be retained if the professional "content" can be considered as marginal".

"Knowledge, experience, civic engagement or the fact of having reached certain renown due to litigation do not in themselves prevent someone from being a consumer", the opinion notice read.

He wrote: "A consumer who is entitled to sue his foreign contact partner in his own place of domicile, can not involve, at the same time as his own claims, claims on the same subject assigned by other consumers". The advocate-general's opinion is not binding, and the full court must still issue a final opinion in the case. "It would be incompatible with these rules to allow a consumer to also make use of this privilege for claims assigned to him by other consumers purely for litigation purposes".

"It could lead to unrestrained targeted assignment to consumers in any jurisdiction with more favourable case-law", he said.

"However, it is not for the court to create such collective redress in consumer matters, but eventually for the union legislator", the press release concludes.

Collective redress is an effective tool for judicial consumer protection, and it helps the judiciary cut down on concurrent proceedings, Bobek conceded.