Face­book court ap­peal to be heard in De­cem­ber

The Irish Times - Business - - BUSINESS | NEWS - MARY CAROLAN

Face­book has got a pro­vi­sional date of De­cem­ber 19th for its un­prece­dented Supreme Court ap­peal aimed at halt­ing a re­fer­ral to the Euro­pean Court of Jus­tice (CJEU) con­cern­ing the va­lid­ity of EU-US data trans­fer chan­nels. The is­sues to be de­cided by the Supreme Court in­clude whether there is any en­ti­tle­ment in the first place to ap­peal such a ref­er­ence to the CJEU.

The High Court’s Ms Jus­tice Caro­line Costello pre­vi­ously ruled there was no such en­ti­tle­ment and she had made the re­fer­ral be­fore the Supreme Court agreed in July last to hear Face­book’s ap­peal. In those cir­cum­stances, the Supreme Court is fast-track­ing the ap­peal and it came be­fore Ms Jus­tice Mary Fin­lay Geoghe­gan on Thurs­day for case man­age­ment. The judge pro­vi­sion­ally fixed De­cem­ber 19th for the ap­peal and made direc­tions for ex­change of var­i­ous le­gal doc­u­ments prior to that.

She told Paul Gal­lagher SC, for Face­book, it must clar­ify ex­actly which is­sues it wants the court to de­ter­mine, not­ing the other par­ties con­tended Face­book had not clearly iden­ti­fied those.

She wanted a list of is­sues, not more sub­mis­sions, plus a list of the or­ders be­ing sought by Face­book, the judge stressed.

Mr Gal­lagher said his side would pro­vide those lists.

Ear­lier, he said the is­sues in­clude whether or not there a ref­er­ence can be ap­pealed.

Face­book also main­tains the High Court made in­cor­rect find­ings of fact in­clud­ing in re­la­tion to US law and surveil­lance prac­tices on foot of which Ms Jus­tice Costello con­cluded the Data Pro­tec­tion Com­mis­sioner had “well founded con­cerns” about the ad­e­quacy of pro­tec­tions in the US for data pri­vacy rights of EU cit­i­zens. Face­book wants the Supreme Court to set aside those find­ings of fact or to di­rect the High Court to re­visit them.

Face­book also con­tends the Supreme Court should find the Pri­vacy Shield agree­ment be­tween the EU and US means there is no re­quire­ment for a ref­er­ence to the CJEU.

Face­book’s sub­mis­sions

Ms Jus­tice Fin­lay Geoghe­gan said she was con­cerned, when she read Face­book’s sub­mis­sions, that they failed to iden­tify any ev­i­dence which was ig­nored by the High Court in a way that would per­mit the Supreme Court to do as Face­book asked. She stressed the Supreme Court was not go­ing to read all the ev­i­dence be­fore the High Court dur­ing the lengthy hear­ing.

The ap­peal is op­posed by par­ties in­clud­ing the Data Pro­tec­tion Com­mis­sioner and Aus­trian lawyer Max Schrems, whose com­plaints about the trans­fer of his per­sonal data to the US led to the pro­ceed­ings. Brian Mur­ray SC, for the com­mis­sioner, told the judge his side wanted Face­book to iden­tify “pre­cisely” what is­sues it wants ad­dressed in the ap­peal and what or­ders it is seek­ing.

The ap­peal is op­posed by par­ties in­clud­ing the Data Pro­tec­tion Com­mis­sioner and Aus­trian lawyer Max Schrems

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