Man challenges refusal to probe Facebook

The data protection commissioner was wrong to refuse to investigate a complaint that the Irish arm of Facebook could not permit the mass transfer of personal data to US intelligence services, it has been claimed.

Max Schrems, an Austrian law student behind a data privacy campaign group called Europe v Facebook, has brought a High Court challenge claiming Billy Hawkes wrongly interpreted and applied the law governing the mass transfer of personal data of Facebook users to the US National Security Agency when he rejected his complaint.

He is asking Mr Justice Gerard Hogan to quash that decision and refer it back to Mr Hawkes for reconsideration. He says the commissioner’s decision was irrational and wants a preliminary reference on the matter to be made to the European Court of Justice.

The commissioner, who found Facebook had acted within the terms of the EU-US data-sharing agreement called Safe Harbour, is opposing his action.

Paul O’Shea, counsel for Mr Schrems, said the complaint arose out of revelations in The Guardian newspaper from whistleblower Edward Snowden.

It was revealed the NSA was involved in mass surveillance of European citizens though what was called the Prism programme, under which Facebook in Ireland and other EU countries transfers large amounts of data to Facebook in the US where the authorities can then access it.

He said the transfer is subject to the Safe Harbour deal, agreed between the US and EU in 2000.

Mr Schrems was not challenging the validity of Safe Harbour but the commissioner’s refusal to consider his complaint that this arrangement is also subject to certain exceptions including that there should be an adequate level of protection of privacy of third parties.

Paul Anthony McDermott, for the commissioner, said the fact that 22 similar complaints reached the threshold for investigation showed his client was not afraid to deal with big firms. The commissioner felt the case could not succeed.

Mr McDermott also said the commissioner had, in 2011, carried out an audit of Facebook Ireland and was satisfied the transfer of data was done in accordance with Safe Harbour rules.

The reason the commissioner found the complaint was vexatious was because it was not possible for the commissioner to make an order stopping the flow of information between Ireland and the US.