Facebook hit with international class action privacy suit (Wired UK)


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An Austrian privacy activist has
launched a wide-reaching class action
suit
against Facebook Ireland for breaching European data
protection law.

Anyone outside of the US and Canada can join activist and law
student Max Schrems’ suit via the website fbclaim.com, since
they will have signed up to Facebook’s terms and conditions via the
Dublin-based European subsidiary. That amounts to around 82 percent
of all Facebook users. After being live for just one hour, the site
has collected 100 participants.

The suit is seeking damages of €500 (£400) per user, and
injunctions to be levied on the company for the following
breaches:

  1. Failing to get “effective consent” for using data
  2. Implementing a legally invalid data use policy
  3. Tracking users online outside of Facebook via “Like”
    buttons
  4. Using big data to monitor users
  5. Failing to make Graph Search opt-in
  6. The unauthorised passing of user data to external apps
  7. Its involvement in NSA’s Prism programme, designed to extract personal data from
    the public’s internet use. (Schrems is pursuing a separate case on
    this due to be heard by the European Court of Justice.)

Schrems is levying the onslaught of charges against Facebook at
the Commercial Court for Vienna after failing to convince Irish
regulators to take, what he sees, as sufficient action. As Facebook
Ireland chooses California law for civil disputes, remedies will be
decided under US law.

Schrems’ battle against the social network has been ongoing
since 2010, when he requested Facebook send him all the user data
it had on him. He received 1,200 pages. He went on to front the aptly
named Europe versus Facebook group, which has pushed for changes to
Facebook’s policies and practices that will bring them in line with
EU Data Protection law. So far this has led to Facebook abolishing facial recognition and deleting excess data it has on
users
. But Irish regulators, which only really have the power
to fine the social network if it does not comply, have not pushed
the rest of Schrems’ claims through.

He tells Wired.co.uk: “The case was running for three years. So
far there is no decision. They usually promise a decision ‘next
month’ or ‘soon’, but there was no binding outcome from the
complaints for three years now.”

The reasons for the delay are unclear. But Schrems points out
“many people in Ireland say that there is intense political and
economic pressure to not enforce the law against the US tech giants
there”.

So how have Irish regulators, if Facebook really is breaching EU
law, managed to push the issue aside?

Getting straight to the point, Schrems says Irish regulators
have run the whole affair in a manner “you would expect from
Russia, not from a EU member state”. He tells us they are simply
not processing complaints, and not providing access to the
pertinent evidence. In addition Europe versus Facebook has not been
privy to Facebook’s own submissions to the regulator.

Anyone that has a Facebook account can sign up to the suit up
until the day oral evidence is given in Vienna. And as a press
release announcing the suit points out, if 10,000 of the social
network’s more than one billion users signed up, it would mean a
€5m fee. For a company that bought Whatsapp for $19bn, that is
still not a great deal of money. But the money is not what Schrems
is after.

“We are only claiming a small amount, as our primary objective
is to ensure correct data protection,” he says. “However, if many
thousands of people participate we would reach an amount that will
have a serious impact on Facebook.”

So what exactly does Schrems really hope to gain from the suit?
For one, he wants Facebook to provide “clear, straight-forward
information and active, opt-in consent by users”. “This is also the
minimal standard under EU law,” he adds.

Since many companies, big and small, also implement the same
kind of behaviour-tracking, big data approach as Facebook, Schrems
also hopes it the class action will be seen as a warning sign for
the whole industry — “you can’t just break the fundamental rights
of others.”

This is the basis for the suit’s complaints about Facebook
programmes like Graph Search. Users were “opted-in” without having
to first give consent. Given it makes information about every user
easily searchable including, initially at least, their public
posts, it makes sense Facebook should have sought its users
personal preference. It went from offering users a setting to
select who can look up their name and timeline, to totally
retracting that option. Anyone particularly concerned about their
information suddenly being accessible would have had to pre-empt
the change by changing various other privacy settings, including
limiting past posts.

Part of the reason it might have been possible for Irish
regulators to resist Schrems various demands, is the vague nature
of data protection terminology. For instance, the law states that
data must be processed “fairly” and it should not be “excessive” in
relation to the purpose for which it was collected.

Now companies across the globe already use big data to track our
behaviour, combining publicly available data with that which the
company already has on us. Schrems simply wants “some limits”
on what data the social network can use, from which sources and for
what purposes.

We asked Schrems if part of the problem is the fact a large
portion of the public is still unaware of just how much, and what
data, is sucked in and analysed by companies everyday. He agreed,
but says he’s tired of that excuse being rolled out by
industry.

“Facebook does a lot so that people don’t get an accurate
picture. I am kinda sick of the PR talk of the industry that users
have to get educated — it’s the industry’s job to make it clear
and simple. Blaming the user is totally absurd. EU data protection
law also requires consent to be ‘unambiguous and informed’. You
hardly find a privacy policy that is unambiguous and leaves the
user with serious information.”

In spite of this, the class action could provide a voice to the
many internet users disillusioned with the status quo, when it
comes to internet companies’ perceived disregard of the European
view on privacy. It might be industry’s job to educate, but
Facebook might also be about to find out just how many of its users
are already fed up. 

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1 August 2014 | 12:07 pm – Source: wired.co.uk

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