A senior adviser for the European Union’s top court told an Austrian privacy activist on Tuesday that he can’t sue Facebook on behalf of 25,000 people.
The adviser said that activist Max Schrems could sue the company on his own but that a class action suit would likely fall flat in court.
Schrems has accused the social network of violating European privacy laws, taking aim at what he sees as invalid privacy policies and data-sharing agreements the company has with US intelligence agencies.
A run-in with Facebook is nothing new for the activist, who was responsible for bringing the case that resulted in the EU’s highest court declaring in 2015 that Safe Harbor, the US-Europe data-sharing pact, was illegal.
He is now trying to sue the company’s Irish division in Austrian court, not only for violating his own privacy, but the privacy of about 25,000 signatories who live in Austria, Germany and India. His hope is to claim 500 euros ($576) in damages for each of them, or about $12.5 million euros.
Schrems’ chances of succeeding are slim, EU Court of Justice Advocate General Michal Bobek said Tuesday in his decision. Bobek was asked to assess Schrems’ case by the Supreme Court in Austria. His opinion is not binding, but is generally followed. His concern is that a case like this could lead Facebook users to choose to sue the company in the EU country with the most favorable court.
Schrems responded to Bobek in a statement, noting that because EU laws allow citizens to move home countries any time they choose, their home court can change just as easily. “It seems that Facebook has managed to score with their emotional horror stories, according to which collective actions by consumers are highly questionable,” he said.
Class action suits, in which many people sue together, are not as common in Europe as they are in the US, but Schrems argued that individual Facebook users could not afford the legal costs of individually fighting their cases against the Silicon Valley tech giant. Instead, Schrems, who is a lawyer, is fighting the case pro bono. Other costs are being covered by German financing company Roland Prozessfinanz.
A Facebook spokesperson welcomed Bobek’s decision. “Today’s opinion supports the decisions of two courts that Mr. Schrems’ claims cannot proceed as ‘class action’ on behalf of other consumers in Austrian courts,” the spokesperson said in a statement.
Schrems said he can still achieve something, even if the class action suit doesn’t work out. “I can at least bring a ‘model case’ at my home jurisdiction in Vienna, which may enable us to debate the illegal practices of Facebook in an open court for the first time,” he said.
Five EU judges will consider Bobek’s opinion and are expected to make a decision in early 2018 about whether the case can proceed.
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