Conclusion at the High Court of Schrems v Data Protection Commissioner

I was present at Court 26 of the High Court here in Dublin yesterday for the final round in Max Schrems’ famous dispute with the Office of the Irish Data Protection Commissioner (ODPC). There were about 30 or so of us there for Justice Hogan’s conclusion of the case which began over two years ago and has since developed into a modern retelling of the classic David v & Goliath tale. Among us, dressed casually in jeans and a black shirt, was Schrems; the PHD student who is challenging Facebook’s control of users’ personal data and who has succeeded in reshaping the privacy rights of over half a billion people. The other significant figure in the story was also present; Justice Gerard Hogan who set the ball rolling on the invalidity of the Safe Harbor agreement when he referred Schrems’ case to the European Courts in June 2014. The learned judge had referred the case to the Luxembourg Court which in turn ruled earlier this month that Safe Harbor is invalid. Now that this agreement is redundant, there is no obstacle to the ODPC conducting an investigation into what Facebook does with its users’ personal information and therefore an investigation, which couldn’t take place previously, will now go ahead immediately. 

The potential repercussions for privacy rights resulting this investigation are, of course, immense and much has been written on the topic (see Mike Morrissey’s article in the Irish Independent for an excellent analysis), however, the “legal chaos” following the European Court’s decision is only one element in how the fundamental right to privacy is being dramatically altered at present. The ongoing seismic change is representative of two vital areas: (A) The transformation of cross-cultural interaction between ordinary people and (B) how this evolution of communication is being managed by public and private organisations who are tasked with safeguarding citizens’ private data. Brad Smith, Microsoft president, refers to the current climate as “dangerous times” and recognises that governments need “timely and appropriate access to data that is stored online.” Tim Cook, Apple CEO has also acknowledged the relationship between privacy and security and has rejected the notion that one must be compromised in favour of the other. 

Therefore the simple question that must be answered, the problem that must be solved, is how to keep the Internet afloat with ideas, speech, culture and commerce without sacrificing what people expect and deserve. The decision of the European Court; referred to yesterday by Justice Hogan as “one of the most important decisions of the Court of Justice of the European Union in recent years” is the latest step in attempting to answer this question and ultimately solve this problem. The next step; the investigation by the ODPC, will broaden this fascinating state of affairs further still and should become an equally significant chapter in this important tale.