Facebook Challenger in Austria Stumbles in Collective Suit

(CN) – An adviser to the EU’s highest court recommended paring down an Austrian man’s privacy claims against Facebook, saying he cannot represent other users.

Though the Nov. 14 decision is not available in English, a press release on the case says Maximilian Schrems lodged his complaint against Facebook Ireland in his home country of Austria.

In addition to alleging that Facebook violated his own privacy and data-protection rights, he purports to represent seven Facebook users domiciled in Austria, Germany and India.

A doctoral candidate specializing in information-technology law and data-protection law, Schrems has used Facebook since 2008.

Though he initially used the social network for private purposes exclusively, under a false name, he has used a Facebook account under his name since 2010 and he created a Facebook page in 2011.

The private account includes photographs, and Schrems uses his the page to post information about any lectures he delivers, as well media appearances and information his lawsuit against Facebook Ireland.

Schrems has published two books just about this case. He gets paid to lecture on the topic and he has registered several blogs, online petitions and crowdfunding actions to support the case.

The EU Court of Justice notes that more than 25,000 people accepted an online invitation by Schrems to assign him their claims for the same violations he alleges. Another 50,000 people were on the waitlist to assign Schrems their claims as of April 9, 2015, according to a footnote.

Austria’s Supreme Court asked the European Court of Justice to weigh in on a Facebook’s ensuing challenge of international jurisdiction.

The social media giant contends that the professional activities Schrems undertook to bring his claims caused him to shed the consumer status that he needs to sue.

Austria’s Supreme Court asked for clarification on two questions: whether Schrems use of Facebook must be considered professional because of his creation of a Facebook page, and whether the jurisdictional consumer privilege is strictly personal — not to be relied on for assigned claims.

Advocate General Michal Bobek advised the Luxembourg-based court Tuesday that Schrems should still be able to rely on his consumer status.

“The carrying out of activities such as publishing, lecturing, operating websites, or fundraising for the enforcement of claims do not entail the loss of consumer status for claims concerning one’s own Facebook account used for private purposes,” a press release on the opinion states (emphasis in original).

Verification of this must still come from the Austrian court, Bobek noted.

Addressing a hypothetical case where the nature and the aim of the contract are both private and professional, Bobek said “consumer status may still be retained if the professional ‘content’ can be considered as marginal.”

“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,” the press release on Bobek’s opinion continues.

As to the question about the other users, Bobek said “a consumer who is entitled to sue his foreign contact partner in his own place of domicile, cannot invoke, at the same time as his own claims, claims on the same subject assigned by other consumers domiciled in other places.”

“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. “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. Such an extension would, in particular, allow to concentrate claims in one jurisdiction and, for collective actions, to choose the place of the more favourable courts, by assigning all claims to a consumer domiciled in that jurisdiction. 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.”

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

“However, it is not for the court to create such collective redress in consumer matters, but eventually for the union legislator,” the press release concludes.

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