Facebook’s seven-year Irish legal marathon enters latest round

Hours after Facebook founder Mark Zuckerberg concluded his testimony before US politicians, his social network's seven-year legal marathon in Ireland is entering its latest round before the Commercial Court in Dublin.

Amid controversy over the illegal use of app data by Cambridge Analytica, which affected 87 million Facebook users including in Europe, Thursday's court sitting is about formulating questions for the European Court of Justice (CJEU) about transfers of EU user data from Facebook's Dublin headquarters to the US.

In essence, the court wants guidance from Europe’s highest judiciary on whether data transfers to the US, in particular an arrangement used by Facebook known as “standard contractual clauses”, are in keeping with EU data protection law and the charter of fundamental rights.

In 2015, after surveillance revelations by whistleblower Edward Snowden, the CJEU threw out another EU transatlantic data transfer arrangement known as Safe Harbour.

The current case could see the Luxembourg judges weigh in on whether the EU’s Safe Harbour’s successor, called Privacy Shield, offers adequate privacy safeguards for citizens.

It’s likely the Irish court will ask the CJEU whether data transfers to a third country for processing, in particular for the purposes of national security and law enforcement, are in keeping with EU citizens’ fundamental right to privacy.

Max Schrems

The current case was brought by the Irish Data Protection Commissioner (DPC) and also involves Facebook and privacy campaigner Max Schrems.

The US government got involved in last year's hearing, telling the court it was "unprecedented" for an EU member state to review its laws given they have already been deemed adequate by the European Commission.

Concerns over Facebook’s privacy policies have been revived by revelations of unauthorised data transfers from the social network to companies via third party applications on Facebook.

The data collected by a Facebook app – and passed on to Cambridge Analytica for alleged use by the Donald Trump presidential campaign – is unlikely to play a direct role in the questions submitted to the CJEU. However, in the previous Safe Harbour case, the Luxembourg judges broadened the discussion in the oral hearing.