The High Court has continued a stay on an order that social media giant TikTok suspend data transfers to China.
Mr Justice Rory Mulcahy said he was satisfied, on the evidence, that TikTok will suffer significant damage if required to implement the “Suspension and Corrective Orders” imposed by the Data Protection Commission (DPC) in advance of the hearing of the company’s appeal against the decision.
As part of its decision, the DPC also imposed a fine of €530 million on the company. The appeal is being brought by TikTok Technology Ltd and TikTok Technologies UK Ltd has been joined in the case as it will ultimately be responsible for paying the fine.
The court heard that TikTok user data originating in the European Economic Area is not stored in China, but is accessible to Chinese engineers. The DPC order requires that this remote access cease and that the processing of the data must brought into compliance, which addresses potential issues around storing of data.
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TikTok claims, among other things, that the DPC breached fair procedures in arriving at its decision.
There was also an alleged failure to engage with material TikTok put before the DPC.
The DPC denies the claims and opposed the application for a stay on its decision.
Mr Justice Mulcahy said that in circumstances where the DPC accepts that there is a serious issue to be tried, the objective of the court was to seek to ensure the least risk of injustice pending the hearing of this appeal.
He was satisfied that the scale of the damage to TikTok, if the stay was not granted, was nearly impossible to quantify, and that there was a limited prospect of the company ever being able to recover the loss if successful in its appeal and that damages could not be regarded as an adequate remedy.
Although any delay in implementing the DPC decision does carry a risk to fundamental rights, which weighs heavily in the balance, the evidence suggests that that risk is limited and will be temporary, he said.
However, he said the stay should be for the shortest period possible and therefore it will be granted on the basis that the appeal will be heard by March of next year insofar as it is within TikTok’s power to do so.
He also ordered that TikTok notift all its users of the DPC’s decision in clear and easily understood language. Any such notification should also refer to TikTok’s appeal and the stay which the judge granted.
