As readers of the Bulletin will be aware, Ireland’s first Protective Costs Order (PCO) has been granted by the High Court in Max Schrems v Data Protection Commissioner. Judge Gerard Hogan of the High Court granted a protective costs order in favour of the applicant which caps the amount of expenses he will be liable for at €10,000.
The applicant, Max Schrems, applied for judicial review of the decision of the Data Protection Commissioner (DPC) not to investigate a complaint Mr Schrems had made against Facebook Ireland Ltd. Facebook Ireland is the registered company which runs European operations for the popular social media website. Mr Schrems’ complaint was in relation to the fact that Facebook Ireland transmits website usage data from Europe to its parent company in the United States. This means that European users’ data could potentially be subject to National Security Agency (NSA) surveillance under the PRISM programme. The High Court found that the issue involved European regulations, the ‘Safe Harbour’ regime and fundamental rights and so sent the questions to the Court of Justice of the European Union (CJEU) for interpretation.
In light of this reference, Mr Schrems applied for a Protective Costs Order. He argued that the order should be granted because of the general importance of the issue, that public interest requires that those issues should be resolved, that he had limited private interest in the case and that his financial situation would preclude him from taking the case without such an order. According to the application, the issue affects approximately one billion people and the scope of the question referred to the CJEU directly affects the protection of fundamental rights. He claimed that in comparison to the wide-reaching impact the case would have, his personal interest was insignificant however the personal risk for taking such a case would financially ruin him.
The Data Protection Commissioner agreed that the case involved a question of great public importance and revealed that they made a proposal to Mr Schrems, that if the DPC were to win the case, they would not pursue costs exceeding €55,000 (which is the amount of donations received from a crowd-funding campaign for the case). The DPC presented this information to the High Court. However on 16 July, Justice Hogan ordered that the costs of the applicant be limited to a maximum of €10,000. This is perhaps recognition of the twenty-two other complaints made by Mr Schrems to the DPC against Facebook, which may also result in court action if this case is successful.
Click here to read the affidavit of Max Schrems in the case.
Click here to read the affidavit of the Data Protection Commissioner in the case.
Click here to read the order making the protective costs order in favour of Mr Schrems.
Click here to read more about Mr Schrem’s organisation, “europe v. facebook.org”.