Facebook takes precise circulate towards Irish privacy watchdog
Facebook’s precise circulate towards the Recordsdata Protection Commission will are trying and preserve the firm’s capacity to switch European electorate’ records to the US despite its lower privacy protections
Sebastian Klovig Skelton ,
Published: 11 Sep 2020 17: 15
Facebook is searching for a judicial review towards the Irish Recordsdata Protection Commission (DPC) after receiving a preliminary describe from the privacy watchdog to suspend its records transfers to the US.
The social media massive lodged the papers ex parte in the Irish Excessive Courtroom on 10 September, which is intriguing to now be asked to take a look at the validity and legality of the DPC’s preliminary ruling that Customary Contractual Clauses (SCCs) can now now not be outdated as the mechanism for transatlantic records transfers.
The European Courtroom of Justice (ECJ) brought the legality of SCCs into question when it dominated to strike down the Privateness Defend settlement in July, on the postulate that it failed to ascertain that that European electorate ample lawful of redress when records is easy by US intelligence providers.
Although the ECJ stumbled on SCCs agree with been restful legally valid, it dominated that corporations agree with a responsibility to ascertain that that those they shared the records with granted privacy protections equal to those contained in EU laws.
Austrian attorney Max Schrems, who initiated the precise lawsuits that led to the ECJ’s landmark decision (colloquially recognized as Schrems II), tweeted that Facebook’s decision to search a judicial review “presentations (a) how they’ll exhaust every opportunity to block a case, even sooner than there may perhaps be a decision, and (b) how it is wholly illusionary to build up one of these case via in just a few weeks or months in the Irish precise intention”.
Every NOYB and Facebook agree with been approached for comment however failed to answer by the time of e-newsletter.
When approached about Facebook’s decision to search a judicial review, the DPC urged Computer Weekly it wouldn’t be commenting at present.
Additional precise circulate towards the DPC
In step with Schrems, his digital rights now now not-for-revenue NOYB used to be now now not advised of the DPC’s decision to self-discipline the preliminary describe, which has now successfully paused the diagram of an ongoing complaint he said the regulator has already failed to behave on for seven years.
This is the reason, NOYB has advised the DPC of its plans to file an interlocutory injunction for its “mismanagement” of the Facebook case.
“This puny case by the DPC is particularly difficult, as Facebook has indicated in a letter from 19 August 2020 that (after the dwell of Safe Harbor, Privateness Defend and the SCCs) it is now relying on a fourth precise foundation for records transfers: the alleged ‘necessity’ to outsource processing to the US beneath the contract with its users,” it said.
“This technique that any ‘preliminary describe’ or ‘second investigation’ by the DPC on the SCCs by myself will, in actuality, now now not stop Facebook from arguing that its EU-US records transfers proceed to be precise. In inform Article 49 (1b), GDPR will most doubtless be an acceptable precise foundation for extremely puny records transfers (to illustrate, when an EU person is sending a message to a US person), however can now now not be outdated to outsource all records processing to the US,” said Schrems.
“We’ll be in a position to attributable to this truth grab the most difficult precise circulate in Ireland to ascertain that that that the rights of users are fully upheld – no subject which precise foundation Facebook claims. After seven years, all cards need to be placed on the table.”
In step with an FAQ on the Schrems II judgment launched by the European Recordsdata Protection Board (EDPB) on 23 July 2020, whether or now now not a firm can switch in step with SCCs will depend on the outcomes of their assessments, which need to agree with in thoughts the circumstances of the switch and any supplementary measures that chilly be put in divulge.
“The supplementary measures alongside with SCCs, following a case-by-case prognosis of the circumstances surrounding the switch, would want to ascertain that that that US laws would now not impinge on the ample stage of protection they guarantee,” it said.
“Even as you design to the conclusion that, taking into yarn the circumstances of the switch and that it is most likely you’ll perhaps perhaps factor in supplementary measures, appropriate safeguards wouldn’t be ensured, you’re required to suspend or dwell the switch of non-public records. On the opposite hand, even as you’re desiring to preserve transferring records despite this conclusion, you have to inform your competent supervisory authority.”
It added that, just in regards to the need of transfers for the performance of a contract, corporations must build in thoughts that non-public records can most difficult be transferred when it’s performed so ‘every so continuously’.
It may perhaps perhaps perhaps perhaps perhaps need to be established on a case-by-case foundation whether records transfers may perhaps perhaps perhaps be obvious as “occasional” or “non-occasional”, it said.
“After all, this derogation [of GDPR’s Article 49] can most difficult be relied upon when the switch is objectively wanted for the performance of the contract.”
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