Europe v Facebook–a lesson in clarity

I was on the news this afternoon. The radio. So the world was spared my visage. My words were quick in response to rapid fire questions about why Europe v Facebook had announced they were suing Facebook in Ireland and their comments about the Irish Data Protection Commissioner.

To put some clarity on my comments (which I believe were reasonably balanced) I thought I’d write a short post here in my personal rant zone. Note I am not a lawyer but am renowned for my Matlock impressions.

Europe v Facebook are suing?

That’s nice. Who are they suing? Why?

Well, it would seem they want to sue Facebook in Irish Courts for breaches of the Data Protection Acts. That’s nice. Section 7 of the Data Protection Acts allows for the Data Subject to sue for specific breaches of the Acts – the Duty of Care is contained in Section 7 and the Standard of Care is effectively Section 2 (and given the level of specificity that Accuracy as a test is defined with the recent Dublin Bus v DPC case would suggest that a strict interpretation would be applied by the Courts as to what the standard would be).

But that is not Europe v Facebook suing. That’s a single punter. Or a series of single punters. Individually. Because we (as Europe v Facebook acknowledge) don’t have Class Actions here in Ireland. So each person rolls the dice and takes their chances in an area of law with little jurisprudence or precedent behind it in Ireland. Oh. And it would likely be a case taken at Circuit Court level unless the individuals wanted to risk large costs if they lost.

Of course, Europe v Facebook could take a case against the State to the ECJ on the basis that the State hasn’t properly implemented the Directive. But as we basically photocopied it in a hurry that might be a long shot. The ECJ tends not to get directly involved in telling Member States how to spend money, particularly when the rest of the EU machinery is trying to get us to spend less money. But it is an option.

Europe v Facebook itself can’t sue under Section 7. No duty of care is owed under the Data Protection Acts to a body corporate.

What it could do is appeal a decision taken by the Data Protection Commissioner on foot of one of the 22 complaints the organisation has submitted. But apparently Europe v Facebook won’t state clearly what the specific complaint is so that a decision can be taken or what specific complaints they require decisions to be taken on, ergo there can be no decision from the DPC and ergo there is nothing to appeal against.

But suing under Section 7 is entirely separate to any DPC investigation (just as suing someone for personal injuries arising from an assault is separate to a criminal investigation of assault). Just as the DPC Audit is a separate process from any investigation of a complaint.

Why the focus on Ireland and the Irish DPC?

Well Facebook have decided that, for a variety of reasons to set up shop in Ireland. (Europe v Facebook seem obsessed with tax breaks but there are other reasons multinationals come to Ireland. The scenery. The nice people. The multilingual skill sets, the cluster effect of other companies).

In setting up Facebook Ireland Ltd Facebook also decided that, for any Facebook User outside of the US and Canada, Ireland would be the country and legislative framework and enforcement framework they would comply with.

So the Irish DPC became responsible for policing the activities of Facebook globally.

Hence Europe v Facebook are dealing with them.

Dealing with the DPC

Europe v Facebook are making some odd demands. They want the evidence from the investigation of their complaints before they will decide to proceed with their complaints. Nuts.

That’s like asking the gardaí for the Book of Evidence before deciding if you will press charges against a thief. Lets ignore the fact that the ‘evidence’ might contain personal data of other individuals or may include commercially sensitive information or other confidential information.  If Europe v Facebook believe they have valid complaints they should specify which ones they want to move to a decision on and then take the process on.

Personally and commercially I have found the DPC to be both a pleasure and a frustration to engage with. But the process is straight forward. Pissing around like a spoiled teenager is frankly, in my opinion, just a waste of the limited time and resources of the DPC.

Europe v Facebook have highlighted that they have the support of German Data Protection Authorities. For balance it is worth pointing out that they have the public support of one of FIFTEEN German Data Protection Authorities, not counting the Federal Data Protection Authority for Germany.

It’s a bit like having the backing of Carlow County Council on a matter of Foreign Affairs policy. Great to have it but not conclusive until the Feds (who represent Germany at the A29 Working Group) back the position. Yes it is important and needs to be noted and considered, but it is not in and of itself decisive.

Time and Resources

The audit of Facebook and subsequent reviews have taken up over 25% of the resources of the Office of the DPC. External technical support was resourced from UCD Campus company pro bono. Europe v Facebook’s press release say they couldn’t find the company. They didn’t look very hard. All the details about the company and the qualifications of the person doing the work were in the first Audit Report.

Europe v Facebook does have a point though: the DPC has no “legally qualified” people. Now, that’s an interesting phrase. Do they mean qualified solicitor or barrister entered into the Roll of the relevant professional society here, or do they mean someone with a legal qualification (such as a BBLS degree) who has not gone on to qualify. Frankly if it is the latter I’m quids in… I’ve a legal qualification and I’m a recognised expert internationally on Data Governance practices.

They point out that the DPC is faced with armies of lawyers when dealing with companies. No shit. A policeman. Having to deal with lawyers. Who’d a thought it? The implication is that they are outclassed in the legal skillz department. And guess what… they are. And they will be forever. For the simple reason that the salary scale of a civil servant wouldn’t match that of the hired guns on retainer. The smarter people go where the money is. Just as the Attorney General and the DPP and Revenue and other high-skill arms of Government lose skilled resources to the private sector so to would the DPC. I would be surprised if they haven’t already lost members of staff to law firms.

And frankly the focus on a tick box skill set is narrow minded in my view. Hiring people who understand how businesses use data, the kinds of technology that are there, the actual best practices in Governance etc. is equally if not more important to driving compliance.

The Upshot

Max Schrems, the law student behind Europe v Facebook, will likely sue Facebook in Ireland. Likely at the Circuit Court level. The DPC will likely be called to give evidence, and they will submit the Audit Report. Facebook will probably be asked in discovery to provide information about their communications with the DPC.

Europe v Facebook will do diddly squat, given they have no standing in the case. They might float a case up to the European Court re the effectiveness of the implementation of the Directive and the adequacy of resourcing and skills of the DPC. But the Directive is largely silent on those questions (as is the Regulation). Beyond that they can and will do nothing until they piss or get off the pot and tell the DPC what complaints they want decisions on. Then they are free to appeal the decisions.

The real upshot is that this kerfuffle and the commentary surrounding it should focus attention on the resourcing, training, skills, qualifications, and competence of the Data Protection Commissioner’s office. They are diligent hard working servants of the public who could probably benefit from upskilling in a variety of areas either through hiring or training. They could also do with more resources, but the focus needs to be on brains not bodies.

The continuing failure of the Courts to properly apply the criminal sanctions in the Acts should also be looked at. Having cases struck out as it is a “first offence” is feck all use when the DPC engagement model is to only prosecute after a second or third occurrence of an offence. I would consider the need for written judgements in DP cases to be important. I would also consider the need for a published archive of Enforcement notices and penalties, similar to the publications from the ICO in the UK, to be a useful step forward.

I wish Europe v Facebook luck in their endeavours. A binding precedent on Data Protection compliance would be nice. But they would do well to remember that the Audit and the investigation of their complaints are two different processes and they need to engage with their process to bring the investigation leg to a close.

Only by specifying the complaints they require a decision on can Europe v Facebook conclude the criminal investigation, either through findings they agree with or an appeal that is upheld.

The potential for legal action by a Data Subject under Section 7 is interesting and has already lead to a number of key cases moving their way through the Irish Courts System at the moment. It would be a valuable contribution to Data Protection law here and elsewhere in Europe. But I can’t help but feel that the better approach would have been to engage positively with the Irish DPC and work towards clarity rather than calling the independence of the DPC into question and being confrontational.

But maybe we are all just pixie heads.