Facebook takes right action against Irish privateness watchdog
Facebook’s right action against the Data Safety Commission will attempt to abet the firm’s capability to switch European electorate’ records to the US despite its decrease privateness protections
Sebastian Klovig Skelton ,
Printed: 11 Sep 2020 17: 15
Facebook is seeking a judicial review against the Irish Data Safety Commission (DPC) after receiving a preliminary command from the privateness watchdog to droop its records transfers to the US.
The social media huge lodged the papers ex parte in the Irish Excessive Court on 10 September, that would possibly just now be asked to confirm the validity and legality of the DPC’s preliminary ruling that Identical old Contractual Clauses (SCCs) can no longer be worn as the mechanism for transatlantic records transfers.
The European Court of Justice (ECJ) brought the legality of SCCs into query when it dominated to strike down the Privacy Defend settlement in July, on the foundation that it failed to construct obvious European electorate ample aesthetic of redress when records is mute by US intelligence products and services.
Even supposing the ECJ found SCCs had been quiet legally legit, it dominated that companies receive a responsibility to construct obvious those they shared the records with granted privateness protections corresponding to those contained in EU law.
Austrian lawyer Max Schrems, who initiated the smartly suited complaints that ended in the ECJ’s landmark resolution (colloquially identified as Schrems II), tweeted that Facebook’s resolution to survey a judicial review “reveals (a) how they’ll teach every opportunity to block a case, even before there is a resolution, and (b) the plan it is miles wholly illusionary to get this kind of case by in a couple of weeks or months in the Irish right system”.
Each and every NOYB and Facebook had been approached for inform nonetheless failed to reply by the point of e-newsletter.
When approached about Facebook’s resolution to survey a judicial review, the DPC counseled Computer Weekly it would no longer be commenting at the present.
Extra right action against the DPC
Per Schrems, his digital rights no longer-for-earnings NOYB was as soon as no longer counseled of the DPC’s resolution to anxiety the preliminary command, which has now effectively paused the job of an ongoing complaint he acknowledged the regulator has already failed to act on for seven years.
For this plan, NOYB has counseled the DPC of its plans to file an interlocutory injunction for its “mismanagement” of the Facebook case.
“This restricted case by the DPC is typically attention-grabbing, as Facebook has indicated in a letter from 19 August 2020 that (after the end of Safe Harbor, Privacy Defend and the SCCs) it is miles now relying on a fourth right foundation for records transfers: the alleged ‘necessity’ to outsource processing to the US beneath the contract with its users,” it acknowledged.
“This implies that any ‘preliminary command’ or ‘second investigation’ by the DPC on the SCCs by myself will, truly, no longer break Facebook from arguing that its EU-US records transfers proceed to be right. In practice Article 49 (1b), GDPR is liable to be a suitable right foundation for extremely restricted records transfers (for instance, when an EU particular person is sending a message to a US particular person), nonetheless can no longer be worn to outsource all records processing to the US,” acknowledged Schrems.
“We are in a position to therefore bewitch the smartly suited right action in Eire to construct obvious the rights of users are fully upheld – no subject which right foundation Facebook claims. After seven years, all cards must be placed on the table.”
Per an FAQ on the Schrems II judgment launched by the European Data Safety Board (EDPB) on 23 July 2020, whether or no longer a firm can switch based fully on SCCs will depend on the outcomes of their assessments, which want to own in mind the cases of the switch and any supplementary measures that cool be put in space.
“The supplementary measures alongside with SCCs, following a case-by-case diagnosis of the cases surrounding the switch, would want to construct obvious US law doesn’t impinge on the ample level of safety they guarantee,” it acknowledged.
“Must you attain to the conclusion that, taking into memoir the cases of the switch and capability supplementary measures, appropriate safeguards would no longer be ensured, potentialities are you’ll well per chance also be required to droop or end the switch of personal records. On the choice hand, in case potentialities are you’ll well per chance also be desiring to abet transferring records despite this conclusion, it is advisable sing your competent supervisory authority.”
It added that, with regard to the necessity of transfers for the efficiency of a contract, companies must endure in mind that personal records can perfect be transferred when it’s done so ‘infrequently’.
It could well must be established on a case-by-case foundation whether records transfers would possibly per chance make certain as “occasional” or “non-occasional”, it acknowledged.
“In spite of all the pieces, this derogation [of GDPR’s Article 49] can perfect be relied upon when the switch is objectively significant for the efficiency of the contract.”
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