Supreme Court to hear Facebook application for appeal

The Supreme Court will hear on July 17th Facebook’s application for permission to appeal a judge’s decision to ask the Court of Justice of the European Union (CJEU) to decide key issues concerning the validity of EU-US data transfer channels.

The High Court's Ms Justice Caroline Costello last May refused to put a stay on her referral to the CJEU of 11 issues pending any appeal by Facebook and directed the referral should proceed "immediately".

She refused the stay in the context of existing jurisprudence to the effect an appellate court cannot set aside an order to make a reference to the CJEU.

Facebook had not established it has an arguable case to bring an appeal to either the Court of Appeal or the Supreme Court, she said.

She also rejected its arguments that its rights would be prejudiced if a stay was not granted and said there would rather be “very real prejudice” to the rights of millions of data users if the referral was further delayed.

Outcome

Facebook wanted the stay pending the outcome of its request to the Supreme Court to hear an appeal against the judge’s October 2017 decision to make the referral in the first place.

After that judgment, submissions were heard on the exact issues for determination and those were finalised last April.

Lawyers for Facebook then said it would seek a “leapfrog” appeal against the referral to the Supreme Court.

A leapfrog appeal is one that bypasses the Court of Appeal.

The Supreme Court will hear appeals only that it considers raise issues of general public importance or are in the interests of justice.

A three-judge Supreme Court will sit on July 17th to hear Facebook’s application.

The 11 questions subject of the referral concern whether European Commission decisions approving EU-US data transfer channels, known as Standard Contractual Clauses, are valid.

The questions raise significant issues of EU law with huge implications, including whether the High Court was correct in finding there is “mass indiscriminate processing” of data by US government agencies under the Prism and Upstream programmes authorised there.

Data

The questions also ask whether EU law applies to the processing of personal data for national security purposes regardless of whether the processing takes place in the EU, US or other third country.

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.

The reference was made in proceedings by the Data Protection Commissioner concerning a complaint by Austrian lawyer Max Schrems that transfer of his personal Facebook data to the US breached his data privacy rights as an EU citizen.

The commissioner brought the proceedings against Facebook Ireland, because its European headquarters are here, and Mr Schrems, who both opposed a reference for different reasons.

Ms Justice Costello agreed with the commissioner that there were “well-founded” grounds for believing the SCC decisions were invalid.

Her judgment was primarily concerned with the Data Protection Directive and its focus on whether third-country protections for EU citizens’ data privacy rights are “adequate”.