High Court permits privacy campaigner to participate in Meta’s challenge to data transfer suspension

Privacy rights campaigner Max Schrems secured the High Court’s permission to participate in Facebook owner Meta’s challenge to a decision requiring the suspension of the transfer and storage of user data from Europe to the US.

Mr Justice Michael Quinn ruled that Mr Schrems, an Austrian lawyer and activist with the privacy rights organisation NOYB (none of your business), was uniquely and directly affected by the Meta proceedings and he ordered that he be joined as a notice party.

In this role he will be permitted to make arguments as a notice party in two separate but related High Court cases taken by Meta over the data transfer decision.

Campaigners claim the US does not provide the same level of protection for data users as is provided in EU/European Economic Area countries.

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The first case being brought by Meta is a statutory appeal against the May 2023 decision of the Data Protection Commission (DPC) requiring Meta to suspend US data transfers.

It followed an inquiry carried out by the DPC, at its own volition, into the data transfers issue and also resulted in a record €1.2 billion fine on Meta.

The second case is a judicial review by Meta seeking to quash that DPC decision.

Mr Schrems sought to be joined as a notice party in both cases. Meta and the DPC opposed the application.

Mr Schrems argued he has a “clear vital and direct interest” in the proceedings because the entire inquiry into data transfers came into existence because of an original complaint he made to the DPC in 2013.

That complaint ultimately resulted in two Court of Justice of the EU (CJEU) decisions that upheld his concerns about the data transfers.

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It was following the second CJEU decision that the DPC launched its “own volition” inquiry into the transfers in 2020, the outcome of which has led to the Meta challenges.

Meta and the DPC argued the test Mr Schrems had to meet for being a notice party was not that he had a vital interest in the proceedings but whether he was “directly affected” by the outcome.

Their other arguments included that Mr Schrems may be interested in the outcome of the proceedings but he only has a general interest rather than a right or interest “in an individual sense”.

As regards the challenge to the DPC’s “own volition” inquiry, Mr Schrems was in a position no different from that of millions of data subjects who are the users of the Facebook service in the EU/European Economic Area, it was argued.

By contrast, the inquiry resulting from his complaint was specific to the transfer of his personal data, they said.

It was also argued that joining Mr Schrems would unjustifiably expand the scope of the proceedings and their complexity and length.

The judge said Meta and the DPC were asking the court to disregard the fact that both inquiries were the result of Mr Schrems’ original complaint.

He was not “simply one of millions of users with a general or indirect interest in the outcome of these proceedings”, said the judge.

“He is uniquely and directly affected both in light of the history of his engagement on the question common to both inquiries and his current status in both inquiries,” he said.

The judge was satisfied that the court hearing the challenges will have the power to regulate the conduct of the hearing to limit the effects of additional time and costs incurred by Mr Schrems’ participation.

He was not persuaded that the risk of prolongation of the trial was of sufficient weight in the circumstances of this case to refuse to allow Mr Schrems to be joined.

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