Privacy campaigner Max Schrems has told a Vienna court he abandoned his challenge to Facebook in Ireland and filed an Austrian civil suit instead to spare himself the "madness" of Irish courts.
Mr Schrems was speaking on the first day of a class-action lawsuit he has taken against the US social media company at Vienna regional court. Along with seven other co-complainants, Mr Schrems claims that Facebook’s terms of service and data collection policies violate EU law.
Some 25,000 other Facebook users have transferred their legal claims to Schrems in a class-action suit seeking €10 million in compensation. Thursday’s three-hour preliminary hearing addressed arguments over whether the court has jurisdiction over the case and whether it was admissable as a class-action case.
As a Facebook user, counsel for Mr Schrems said he was entitled under EU consumer law to take the case in Vienna, where he lives.
Facebook argues that Dublin, home to its international operation, is the correct jurisdiction. Asked by the court why he withdrew his original 2011 complaint against Facebook last July, Mr Schrems said he feared he would have to pursue any final DPC ruling against Facebook through the Irish courts. “I wouldn’t be done in 25 years, it’s madness,” he said.
“I thought it could drag on for years without achieving anything.”
Dr Nikolaus Pitkowitz, for Facebook, asked the court to dismiss the case saying it lacked competence to adjudicate on claims that themselves lacked substance.
Mr Schrems could have used collective redress provisions in Ireland, he said, or sued Facebook in its home state of California, “where class actions are very well recognised”.
“The plaintiff disregards this entirely by pursuing this pseudo-class action lawsuit here in Vienna,” he said. “This court is not responsible.”
Counsel for Facebook said the Schrems case had contradictory consumer and class-action components by drawing in Facebook users from Germany, India and other countries.
European consumer law did not allow complaints and claims to be “exported” or transferred to third parties, he argued, nor did transferring claims to Mr Schrems “allow a new jurisdiction to be pulled from a hat”.
Dr Pitkowitz argued that the Schrems case was still before the Irish DPC and, as such warned that a “serious risk exists that two contradictory judgments could be taken by this court and the DPC and should be prevented”.
Counsel for Mr Schrems said there was no such impediment as all but one of the 23 Facebook complaints have been withdrawn.
Contacted by The Irish Times, the DPC confirmed that it was “a matter of public record that, with one exception,” – a case currently before the ECJ – “Mr Schrems elected to withdraw his complaints and to instead bring a civil action in another jurisdiction”.
Dr Wolfgang Proksch, for Mr Schrems, rejected Facebook claims that his client was not really a consumer but pursuing the case with a "careerist and commercial" intent.
“He lives for this case but not from it,” said Dr Proksch, saying Mr Schrems lived from a part-time job and from rental income on a property.
Questioned by counsel for Facebook about his “Europe-v-Facebook” campaign, Mr Schrems said he allowed a media “myth” persist about its scale. “I have a laptop from which everything comes, there is no organisation behind me and I have no paid staff,” he said.
Mr Schrems disputed a suggestion that the DPC’s two audits of Facebook practices addressed and resolved “90 per cent” of his own complaints, saying the true figure was “more like 10 per cent”.
“And there was never a formal decision on my 22 complaints,” he said. After the preliminary hearings, the court said it would rule on the jurisdiction issue before the summer. Should the case proceed, it could take several months to conclude.
