November 17, 2017

Facebook critic Max Schrems faces partial setback

14 November 2017, 07:03 | Glen Norman

Schrems entitled to sue Facebook through Austrian court

Max Schrems can sue Facebook but only as a consumer

Mr Schrems' complaint has primarily been heard in Dublin so far.

Facebook initially disputed the jurisdiction of the Austrian courts in hearing such a claim, so the Austrian supreme court referred the matter to the ECJ in Luxembourg.

Facebook Ireland also said that the consumer privilege that allows someone to sue a company in a different jurisdiction can't apply for joint claims.

The EU Court of Justice's advocate-general found that Schrems could not add people from other countries to his case, as this type of global collective action is not possible in EU courts.

The EU Court of Justice notes that more than 25,000 people accepted an online invitation by Schrems to assign him their claims for the same violations he alleges.

For its part, Facebook has limited itself to saying: "Today's opinion supports the decisions of two courts that Mr Schrems's claims can not proceed as "class action" on behalf of other consumers in Austrian courts".

Schrems can only sue Facebook in Ireland as Max Schrems, not on behalf of 25,000 users.

Facebook Ireland had challenged the worldwide jurisdiction of the Austrian Courts and argued that Mr Schrems could no longer be regarded as an ordinary consumer because of his professional activities relating to his claims against Facebook.

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Verification of this must still come from the Austrian court, Bobek noted.

Since 2010, he had used a Facebook account under his own name, spelled using the Cyrillic alphabet, for his private use.

He had approximately 250 Facebook friends.

The megacorp argued that because Schrems set up a Facebook page - where he lists information on his lectures, books and panel debates - in addition to his personal account, his use of the social media platform is professional.

Austria's Supreme Court asked for clarification on two questions: whether Schrems use of Facebook is professional must be considered professional because of his creation of a Facebook page, and whether the jurisdictional consumer privilege is strictly personal - not to be relied on for assigned claims.

Schrems also recruited a team of 10 to support him in his "campaign against Facebook".

Only in "exceptional scenarios" could an ulterior change in the account's use be taken into account.

This would give rise to claims being concentrated in one jurisdiction whereby class actions could seek out more favourable courts, by assigning all claims to a consumer domiciled in that jurisdiction.

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"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.

Schrems said he can still achieve something, even if the class action suit doesn't work out.

Schrems said that this opinion was "unfortunately hard to understand", and countered that if people were to bring separate cases this would drive court costs up for everyone.

Facebook has obtained a partial, preliminary victory in the privacy case brought against the company by Austrian Maximilian Schrems.

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

The full judgement on the case will be delivered in a number of months' time.

Facebook attempted to derail the Schrems case in the Vienna court altogether by arguing he operates as a business and not as a consumer.

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