There was an interesting Advocate General’s opinion a few days ago from the Court of Justice of the European Union (CJEU) in the ongoing campaign of the Austrian privacy activist, Max Schrems, against Facebook - Case C‑498/16, Schrems v Facebook.

You may remember Max Schrems. He was the person who, through previous litigation against Facebook, brought about the end of the Safe Harbor data protection agreement with the United States, forcing the EU to negotiate the current Privacy Shield. Well, he is not finished with Facebook yet.

His current claim alleges that Facebook has committed numerous infringements of data protection rules in contravention of Austrian, Irish and EU law. The Advocate General’s opinion is on two preliminary points of law, not touching the points of substance.

First, Facebook claimed that Mr Schrems was no longer a consumer in his dealings with Facebook, given that he is more or less a professional activist against them. This would mean that he couldn’t claim against them in the Austrian courts. The question referred to the CJEU asked whether had he lost the status of consumer because ‘after the comparatively long use of a private Facebook account, he publishes books in connection with the enforcement of his claims, on occasion also delivers lectures for remuneration, operates websites, collects donations for the enforcement of his claims and has assigned to him the claims of numerous consumers on the assurance that he will remit to them any proceeds awarded, after the deduction of legal costs?’

The definition of consumer comes down to an interpretation of EU Regulation 44/2001 on the jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. As stated above, the benefit of being a consumer is that you can sue in your own domestic court, rather than in the court local to the provider. Mr Schrems says that it would be cripplingly expensive for him to sue in Ireland, where Facebook is based.

The opinion has an entertaining run-down of the difference between a Facebook account and a Facebook page (since Mr Schrems has both, with different uses), and whether there is a single contract for both. But in the end the Advocate General found that the ‘carrying out of activities such as publishing, lecturing, operating websites, or fundraising for the enforcement of claims does not entail the loss of consumer status for claims concerning one’s own Facebook account used for private purposes’, the latter being a description of Mr Schrems’ account. So he won that point.

But he did not win the next, which may be thought the more important. He was hoping to turn his claim into a collective redress case, and to this end had solicited other Facebook users to assign their claims against Facebook to him. This they did, in large numbers: over 25,000 of them through one of the websites registered by him. And, back in 2015, another 50,000 were on a waiting list. However, only seven claims were included in the actual proceedings, from consumers in Austria, Germany and India. (The case, by the way, has proceeded with the support of a litigation funding company, for a fee of 20% of the proceeds, and also with the support of a public relations agency.)

The interpretation of whether such a collective redress action could be recognised fell mainly under an interpretation of the provisions of the same EU Regulation already quoted - 44/2001. The Advocate General rehearsed interesting arguments for and against. Essentially, was the consumer to be defined as only the original party to the contract, or should the definition include the person who has acquired the rights in one way or the other of the original party? The Advocate General came down in favour of the narrowest interpretation, and excluded collective redress for the assigned rights through Mr Schrems.

This has understandably provoked cries of outrage from Mr Schrems and consumer groups, who have pointed out that it excludes many people from the definition of consumer (who are therefore able to sue in their home state): for instance, the child of parents who have bought a ticket to an event where the child is injured, the partner of someone who paid for both dinners which caused food poisoning, or a second traveller where the first traveller paid for both tickets. It would be strange if these people were excluded from the benefit of the Regulation.

The Advocate General retreated from a wider definition for a number of reasons, including a desire not to be guilty of judicial activism and so create a right to collective redress which the legislator has not yet created itself. Mr Schrems decried that, also.

We will see whether the Court will follow the Advocate General’s opinion in due course.

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