Case law
16 February 2018

Schrems versus Facebook, take two

Maximilian Schrems, an Austrian citizen, has become known in connection with the CJEU’s ruling annulling the Commission’s decision that declared the USA a safe country to transfer personal data from the EU (‘Safe Harbour’). Now the Court of Justice of the EU ruled on the preliminary question whether in his litigation with Facebook, Schrems should be viewed as a consumer under EU laws even though he uses his profile also as a professional activist.

Filip Horák

Schrems filed several lawsuits with Austrian courts, seeking a decision on the unlawfulness of processing his and seven other users’ personal data by Facebook. In this respect, the Austrian Supreme Court submitted a preliminary question to the CJEU as to whether Schrems may be viewed as a consumer under EU laws even though he uses his profile also for his activist efforts (among other things, to inform on his litigations against Facebook). The answer to this question plays a crucial role in the decision whether the respective courts of EU member states (in this case the Austrian court) even have the jurisdiction to deal with such lawsuits.

The SDEU concluded that users of private Facebook accounts do not lose their consumer status just because they publish books, give lectures, operate websites, fundraise and have other consumers’ claims assigned to them to subsequently assert those in court. On the other hand, a person asserting not just their own claim, but also other persons’ claims before their home court (a court determined according to their domicile) cannot be considered a consumer.

The case in question thus also involved a procedural issue: whether the assigned claims may be asserted in the plaintiff’s home court (the court of his domicile). The court denied this. A total of 25 000 Facebook users have assigned their claims arising from consumer protection and alleged breaches of personal data protection to Schrems; the court’s negative answer thus means that at the moment, a collective lawsuit of consumers from several member states is not possible in the EU (unlike class action suits in the USA). This will, however, be allowed in the personal data protection area by the upcoming GDPR. Making this option generally available is also currently being discussed at the EU level.

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