Maximilan Schrems, an Austrian lawyer and activist, may, as a user of a private Facebook account, initiate legal proceedings in Austria against the American social media network Facebook for infringements to his privacy. However, he cannot initiate collective action on behalf of other consumers, the European Union Court of Justice ruled on Thursday 25 January (Case-498/16).
Schrems, who is renowned for having been at the origin of invalidation of the Safe Harbour provision for the transfer of European personal data to the United States (see EUROPE 11404), brought action against Facebook Ireland before a court in Austria, alleging that the company has infringed his privacy and data protection rights. The proceedings brought by him were also presented on behalf of seven other Facebook users, domiciled in Austria, Germany and India, who had conveyed their rights.
Austrian justice recognises the collective action by consumers. The “Brussels” regulation (44/2001) allows a consumer to sue a foreign contractual partner before the court in his place of domicile (forum actoris for consumers).
Taking on board the conclusions reached by the advocate general (see EUROPE 11904), the Court considers that Schrems remains a consumer for the use of his private Facebook account, even though he may also use the digital social network for professional purposes (publication of books on the protection of personal data, conferences, exploitation of internet sites, and the raising of donations).
Neither the expertise that an individual may acquire regarding digital social network services nor his engagement for representation of the rights and interests of users of such services remove his capacity as “consumer”, the Court points out. Interpretation of the notion of “consumer”, which would not rule out such activities would prevent effective defence of the rights that consumers hold with regard to their professional co-contractors, including those relating to the protection of their personal data.
Conversely, the European judge says, the consumer forum cannot be invoked for action by a consumer aimed at vindicating, before an Austrian court, rights conveyed by other consumers in the same member state, in other member states or in third countries.
The Court recalls that the consumer forum was created to protect the consumer as party to the contract at issue. Hence, the consumer is only protected in so far as he is personally the applicant or defendant in proceedings. Consequently, the applicant, who is not party to the consumer contract at issue, cannot benefit from that forum.
In response to the ruling in a video shown via his Twitter account, Max Schrems welcomed the fact that, before an Austrian court, Facebook must answer for its policy to protect data and especially the monitoring exercised regarding online browsing by visitors to Facebook pages. He considered as “highly problematical” the fact that, according to the Court, only consumers having signed a contract upon purchasing the product when new are covered by EU law.
National mechanisms for collective recourse to justice are lacking in nine countries.
According to the European Consumers Bureau (BEUC), the Court’s ruling constitutes a new appeal in favour of a European legislative instrument allowing collective proceedings to be brought. “Due to the high costs, it is often not realistic for consumers to go to court alone, especially when the harm they have suffered is rather small in monetary terms”, commented BEUC Director Monique Goyens.
The same day, the European Commission published a report on the implementation of its 2013 recommendation on the introduction of national systems of collective action (see EUROPE 10864 and 11842). Nine member states did not introduce such a mechanism in their internal body of law: Cyprus, Estonia, Greece, Hungary, Ireland, Latvia, Luxembourg, the Czech Republic, and Slovakia. According to BEUC, existing national mechanisms work the best in Belgium, Spain, Italy, Portugal and Sweden.
A Commission spokesperson has said that the European institution would be presenting a package in April aimed at improving respect of European consumer protection legislation. Among other things, the introduction of an element for collective recourse to justice is included in Directive 2009/22/EC on injunctions relating to consumer protection. (Original version in French by Mathieu Bion)