Austrian Privacy Complaint v. Facebook to Proceed

By Jabeen Bhatti

Oct. 21 — Privacy advocate Max Schrems will be allowed to go forward with litigation in Austria over his allegations that Facebook Inc. improperly allowed his personal information to be shared with the U.S. National Security Agency, after the Vienna Higher Regional Court Oct. 21 ruled in his favor on 20 of 22 claims.

Schrems, an Austrian student, is the same plaintiff that asked the Irish data protection authority to investigate whether Facebook, which has its European Union base in Ireland, cooperated with NSA. The Irish DPA's refusal to investigate because Facebook's transfers of personal data to the U.S. were done under the U.S.-EU Safe Harbor Program.

Ultimately, the European Court of Justice, the EU's top court took up the case and ruled that the Safe Harbor is invalid because it doesn't adequately protect data from U.S. mass surveillance.

The Irish privacy office has now opened an investigation into the complaint filed by Schrems.

Establishes Jurisdiction 

The Vienna ruling overturned a lower court that ruled it lacked jurisdiction over the complaint.

In an Oct. 21 statement, Schrems said the lower court said he was acting as an advocate and not as a private consumer.

The Vienna court didn't authorize an appeal to the Austrian Supreme Court on the grounds cited by the lower court, Schrems said, meaning that the bulk of the case against Facebook is likely to be heard in Austrian civil court.

De Facto Class Action?

The court decided against Schrems on the question of whether he could represent other plaintiffs in the case. Because Austria doesn't recognize class action civil suits,

Schrems requested that other plaintiffs wishing to file claims against Facebook allow him to take over those claims, an attorney who only agreed to speak on background told Bloomberg BNA Oct. 21.

But the court decided that EU law doesn't permit the assigning of claims to other consumers in a court of local jurisdiction, Schrems said.

Still, the court ruled that because this particular type of de facto class action hasn't been dealt with by the Austrian Supreme Court, it allowed an appeal of related issues. Schrems said he would exercise his right to appeal those issues to the Supreme Court.

To contact the reporter on this story: Jabeen Bhatti in Berlin at

To contact the editor responsible for this story: Donald G. Aplin at