Austrian can't file Facebook class action suit: EU Court adviser

Remigio Civitarese
Novembre 14, 2017

An adviser to the EU's highest court recommended paring down an Austrian man's privacy claims against Facebook, saying he can not represent other users.

Facebook has obtained a partial, preliminary victory in the privacy case brought against the company by Austrian Maximilian Schrems.

He is now trying to sue the company's Irish division in Austrian court, not only for violating his own privacy, but the privacy of about 25,000 signatories who live in Austria, Germany and India.

Schrems can only sue Facebook in Ireland as Max Schrems, not on behalf of 25,000 users.

It was pointed out that since taking the case Schrems has published two books, delivered lectures, registered numerous websites, won awards and founded the association Verein zur Durchsetzung des Grundrechts auf Datenschutz. His hope is to claim 500 euros ($576) in damages for each of them, or about $12.5 million euros.

Facebook said the advocate general's opinion supported the decision of two courts that Schrem's claims could not proceed as a class action.

A run-in with Facebook is nothing new for the activist, who was responsible for bringing the case that resulted in the EU's highest court declaring in 2015 that Safe Harbor, the US-Europe data-sharing pact, was illegal.

So, mark one up for Schrems - if the ECJ heeds Bobek's advice (which isn't binding, but is usually followed), he should be allowed to sue Facebook Ireland from the Vienna court. But Bobek dismissed the Facebook arguments, and Schrems is free to sue the company before Austrian courts. "Knowledge, experience, civic engagement or the fact of having reached certain renown due to litigation do not in themselves prevent someone from being a consumer", according to the court statement.

"The rules in question clearly show that the jurisdictional consumer privilege is always limited to the concrete and specific parties to the contract", the press release states. His concern is that a case like this could lead Facebook users to choose to sue the company in the European Union country with the most favorable court. "It could lead to unrestrained targeted assignment to consumers in any jurisdiction with more favourable case-law, lower costs or more generous jurisdictional aid, potentially leading to the overburdening of some jurisdictions". "It would be incompatible with these rules to allow a consumer to also make use of this privilege for claims assigned to him by other consumers purely for litigation purposes".

Collective redress is an effective tool for judicial consumer protection, and it helps the judiciary cut down on concurrent proceedings, Bobek conceded.

He also noted that it is not up to the Luxembourg-based court "to create such collective redress in consumer matters".

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