{"id":31,"date":"2018-05-02T11:50:00","date_gmt":"2018-05-02T11:50:00","guid":{"rendered":"https:\/\/www.chiefjusticeblog.com\/2018\/05\/02\/facebook-to-press-ahead-with-supreme-court-appeal-on-data\/"},"modified":"2018-05-02T11:50:00","modified_gmt":"2018-05-02T11:50:00","slug":"facebook-to-press-ahead-with-supreme-court-appeal-on-data","status":"publish","type":"post","link":"https:\/\/www.chiefjusticeblog.com\/technology\/facebook-to-press-ahead-with-supreme-court-appeal-on-data\/","title":{"rendered":"Facebook to press ahead with Supreme Court appeal on data."},"content":{"rendered":"
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Tech giant\u2019s bid to stall European Court action has been rejected by the High Court. Facebook is pressing ahead with its bid to persuade the Supreme Court to hear an appeal over the referral of key issues to the Court of Justice of the EU (CJEU) concerning the validity or otherwise of EU-US data transfer channels.<\/p>\n

Ms Justice Caroline Costello on Wednesday directed delivery \u201cimmediately\u201d of 11 questions for determination by the CJEU after refusing Facebook a stay pending the outcome of its bid for an appeal against her October 2017 judgment approving a referral.<\/p>\n

The judge ruled Facebook had no arguable case concerning whether an appeal court could overturn or vary a referral decision.<\/p>\n

An earlier Supreme Court decision that an appellate court has no jurisdiction to overturn a referral decision is binding on her and Facebook\u2019s arguments otherwise were \u201cwithout merit\u201d and \u201cmisplaced\u201d, she said.<\/p>\n

Dismissing Facebook\u2019s argument its interests would be prejudiced if a stay was refused, the judge said the existing delays have already \u201cpotentially gravely prejudiced\u201d the Data Protection Commissioner, Austrian lawyer Max Schrems who made the initial complaint over his data transfers, and millions of data subjects throughout the EEA whose data continues to be processed under the disputed European Commission decisions approving EU-US data transfer channels.<\/p>\n

The court shares the DPC\u2019s concerns that data of millions of data subjects may continue to be processed unlawfully, she said.<\/p>\n

She was critical of Facebook\u2019s conduct of the litigation in relation to its intended reliance in any appeal on the coming into effect of the General Data Protection Regulation on May 25th and said that conduct weighed against even a limited stay.<\/p>\n

The court will cause \u201cthe least injustice\u201d by refusing a stay and directing the immediate delivery of the reference to the Court of Justice, she ruled.<\/p>\n

Earlier, she noted as Facebook intends to advance arguments before the Supreme Court the referral is moot or pointless because of the General Data Protection Regulation (GDPR) coming into effect on May 25th.<\/p>\n

The judge said Facebook had told her, on day 15 of the 21 day High Court hearing, it was considering the fact the GDPR would come into effect on May 25th.<\/p>\n

When she asked whether that went to mootness, counsel for Facebook had said, if there was to be a referral, the GDPR would have come into effect by the time the matter was heard by the CJEU.<\/p>\n

Counsel had also said the prospects were \u201cnot high\u201d for any referral being decided before the replacement of the Data Protection Directive, the basis of the concerns whether there was adequate protection for data privacy rights of EU citizens.<\/p>\n

That was the \u201csole discussion\u201d on the GDPR point in the High Court case, she said.<\/p>\n

If Facebook had wished to argue the reference would be moot because of the GDPR, that should have been done \u201cexplicitly and clearly\u201d and not in that \u201coblique passing fashion\u201d.<\/p>\n

Facebook had not alerted the parties and the court this was a point on which it intended to place \u201csuch reliance\u201d. The fact the point was only now being raised gave rise to \u201cconsiderable concern\u201d as to Facebook\u2019s conduct of the case and the manner in which it has dealt with the court.<\/p>\n

Facebook had not alerted the court that, as far as Facebook was concerned, there was a \u201cclock ticking down\u201d which meant the case was not expedited so as to ensure the issues were not decided by passage of time.<\/p>\n

Last month, having heard detailed arguments from the parties, Ms Justice Costello finalised eleven questions for determination by the CJEU. The questions raise significant issues of EU law with huge implications, including whether the High Court was correct in finding there is \u201cmass indiscriminate processing\u201d of data by US government agencies under the PRISM and Upstream programmes authorised there.<\/p>\n

Other questions concern whether the Privacy Shield Decision and other measures in the US afford adequate protection for EU citizens whose data is transferred there.<\/p>\n

On April 30th, Facebook\u2019s lawyers indicated it was seeking a \u201cleapfrog\u201d appeal to the Supreme Court and sought a stay on the referral, made in proceedings by the DPC concerning a complaint by Mr Schrems that transfer of his personal Facebook data by Facebook Ireland to the US breached his data privacy rights as an EU citizen.<\/p>\n

Ms Justice Costello agreed to refer after concurring with the commissioner there are \u201cwell founded\u201d grounds for believing the EC decisions approving data transfer channels, known as Standard Contractual Clauses (SCCs), are invalid. – resource credit<\/a>.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"Tech giant\u2019s bid to stall European Court action has been rejected by the High Court. Facebook is pressing…\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_seopress_robots_primary_cat":"","_seopress_titles_title":"","_seopress_titles_desc":"","_seopress_robots_index":"","footnotes":""},"categories":[7],"tags":[],"class_list":{"0":"post-31","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-technology","7":"cs-entry","8":"cs-video-wrap"},"_links":{"self":[{"href":"https:\/\/www.chiefjusticeblog.com\/wp-json\/wp\/v2\/posts\/31"}],"collection":[{"href":"https:\/\/www.chiefjusticeblog.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.chiefjusticeblog.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.chiefjusticeblog.com\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.chiefjusticeblog.com\/wp-json\/wp\/v2\/comments?post=31"}],"version-history":[{"count":0,"href":"https:\/\/www.chiefjusticeblog.com\/wp-json\/wp\/v2\/posts\/31\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.chiefjusticeblog.com\/wp-json\/wp\/v2\/media?parent=31"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.chiefjusticeblog.com\/wp-json\/wp\/v2\/categories?post=31"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.chiefjusticeblog.com\/wp-json\/wp\/v2\/tags?post=31"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}