Facebook takes right action against Irish privateness watchdog
Facebook’s right action against the Files Safety Commission will are trying to defend the corporate’s capability to transfer European residents’ recordsdata to the US no topic its lower privateness protections
Sebastian Klovig Skelton ,
Printed: 11 Sep 2020 17: 15
Facebook is looking out for a judicial evaluation against the Irish Files Safety Commission (DPC) after receiving a preliminary portray from the privateness watchdog to suspend its recordsdata transfers to the US.
The social media extensive lodged the papers ex parte in the Irish High Court on 10 September, that will now be asked to check the validity and legality of the DPC’s preliminary ruling that Same old Contractual Clauses (SCCs) can’t be dilapidated because the mechanism for transatlantic recordsdata transfers.
The European Court of Justice (ECJ) brought the legality of SCCs into quiz when it dominated to strike down the Privateness Protect agreement in July, on the root that it didn’t make determined European residents enough correct of redress when recordsdata is mute by US intelligence companies and products.
Even supposing the ECJ stumbled on SCCs accept as true with been mute legally proper, it dominated that corporations accept as true with a accountability to make determined those they shared the guidelines with granted privateness protections linked to those contained in EU law.
Austrian lawyer Max Schrems, who initiated the right proceedings that led to the ECJ’s landmark likelihood (colloquially is named Schrems II), tweeted that Facebook’s likelihood to keep a matter to a judicial evaluation “reveals (a) how they’re going to exhaust every replacement to block a case, even earlier than there is a likelihood, and (b) the method in which it is wholly illusionary to bag this kind of case by method of in a pair of weeks or months in the Irish right machine”.
Each NOYB and Facebook accept as true with been approached for sigh nonetheless didn’t answer by the level of publication.
When approached about Facebook’s likelihood to keep a matter to a judicial evaluation, the DPC informed Laptop Weekly it wouldn’t be commenting at the present.
Additional right action against the DPC
Consistent with Schrems, his digital rights no longer-for-earnings NOYB modified into as soon as no longer informed of the DPC’s likelihood to advise the preliminary portray, which has now effectively paused the course of of an ongoing criticism he mentioned the regulator has already didn’t act on for seven years.
For this motive, NOYB has informed the DPC of its plans to file an interlocutory injunction for its “mismanagement” of the Facebook case.
“This puny case by the DPC is extremely appealing, as Facebook has indicated in a letter from 19 August 2020 that (after the pause of Safe Harbor, Privateness Protect and the SCCs) it is now relying on a fourth right foundation for recordsdata transfers: the alleged ‘necessity’ to outsource processing to the US under the contract with its users,” it mentioned.
“This implies that any ‘preliminary portray’ or ‘2d investigation’ by the DPC on the SCCs by myself will, in actuality, no longer stop Facebook from arguing that its EU-US recordsdata transfers continue to be right. In snarl Article 49 (1b), GDPR might well well perhaps be an acceptable right foundation for extraordinarily puny recordsdata transfers (as an illustration, when an EU particular person is sending a message to a US particular person), nonetheless can’t be dilapidated to outsource all recordsdata processing to the US,” mentioned Schrems.
“We can subsequently do away with the suitable right action in Ireland to guarantee the rights of users are fully upheld – no topic which right foundation Facebook claims. After seven years, all cards might well well perhaps also mute be positioned on the table.”
Consistent with an FAQ on the Schrems II judgment launched by the European Files Safety Board (EDPB) on 23 July 2020, whether or no longer a company can transfer basically based fully fully on SCCs will depend on the outcomes of their assessments, which accept as true with to do away with into yarn the conditions of the transfer and any supplementary measures that chilly be keep in space.
“The supplementary measures along with SCCs, following a case-by-case diagnosis of the conditions surrounding the transfer, would accept as true with to guarantee US law would no longer impinge on the enough diploma of security they snarl,” it mentioned.
“Whenever you just about the conclusion that, taking into yarn the conditions of the transfer and that you just would possibly well well perhaps perhaps also factor in supplementary measures, appropriate safeguards wouldn’t be ensured, you are required to suspend or pause the transfer of non-public recordsdata. On the opposite hand, whereas you occur to are desiring to withhold transferring recordsdata no topic this conclusion, you would possibly well well perhaps perhaps even accept as true with got to deliver your competent supervisory authority.”
It added that, in regards to the necessity of transfers for the performance of a contract, corporations might well well perhaps also mute do away with into yarn that non-public recordsdata can fully be transferred when it’s performed so ‘on occasion’.
It might perhaps perhaps well well perhaps might well well perhaps also mute be established on a case-by-case foundation whether recordsdata transfers might well well perhaps be determined as “occasional” or “non-occasional”, it mentioned.
“At the least, this derogation [of GDPR’s Article 49] can fully be relied upon when the transfer is objectively obligatory for the performance of the contract.”
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