On 19 July 2016 the High Court delivered its judgement in respect of applications made by ten parties seeking to be joined as amicus curiae in the ongoing digital rights litigation involving Facebook. Four applicants the United States Government, Electronic Privacy Information Centre, BSA Business Software Alliance and Digital Europe were granted leave to appear as amici curiae.
By way of background the Data Protection Commissioner is seeking to question the legality of a mechanism known as ‘Standard Contractual Clauses’ (‘SCCs’), which enables the data of Facebook users in the EU to be transferred to the US. In earlier litigation taken by Austrian privacy campaigner Max Schrems the European Court of Justice found that an existing agreement with the US (i.e. the ‘Safe Harbour Agreement’) did not adequately protect data transferred from the EU to the US. In the wake of this decision Facebook looked to use SCCs as an alternative means to enable the transfer of such data. Max Schrems outlined a number of concerns with SCCs to the Data Protection Commissioner. The Data Protection Commissioner issued a draft finding that a number of those concerns were well-founded and has asked the High Court to refer the issue of legality of SCCs to the European Court of Justice so it can make a judgement on it.
In delivering judgement Judge McGovern stressed that the discretion to grant the status of amicus curiae is one which should be done so sparingly. Affirming the legal principles set down by previous cases Judge McGovern laid out the relevant factors to be considered in any application of this nature. First, does the applicant have a ‘bona fide interest and not just acting as meddlesome busybody’, second, whether the case has a ‘public law dimension’ and that the applicant ‘has not just a sectional interest, that is the interest of its members, but a general interest which should be respected and to which regard should be had’; and third, whether ‘the decision may affect a great number of persons’. Judge McGovern also agreed with the earlier approach of Judge Hogan in Schrems v. Data Protection Commissioner No.2 that a party will not necessarily be denied amicus status merely because it has a strong view or vested interest in the outcome of a particular matter. Rather Judge McGovern stressed that so far as the court is concerned it is important to recognise that an amicus curiae is there to assist the court and has not become a party to the action.
PILA was delighted to support the Electronic Privacy Centre with its application through our Pro Bono Referral Scheme. If you are interested in learning more about the ways in which PILA can support your social justice organisation please contact PILA’s Legal Officer Eithne Lynch at Eithne.lynch@flac.ie.
For a copy of the judgement click here.