November 20, 2017

According to Advocate General Bobek, Maximilian Schrems should be able to rely on his consumer status in order to sue Facebook Ireland before the Austrian Courts with respect to the private use of his Facebook account. However, Mr Schrems cannot rely on his consumer status with respect to claims assigned to him by other consumers.

Mr Schrems specialised in IT law and data protection law, and is currently writing a PhD thesis on the legal aspects of data protection. He has used Facebook since 2008. At first, he used Facebook exclusively for private purposes under a false name. Since 2010, he has used a Facebook account under his own name, spelt using the Cyrillic alphabet, for private purposes. He has approximately 250 “Facebook friends”. Since 2011, he has also used a Facebook page containing information on the lectures he delivers, his participation in panel debates and media appearances, the books he has written, awards he has won, a fundraiser he has launched and information about his various legal proceedings.

Mr Schrems issued proceedings against Facebook Ireland in the Austrian Courts, alleging that Facebook Ireland had violated his privacy and data protection rights and those of seven other Facebook users who had assigned their claims to him in response to his online invitation. Those users were domiciled in Austria, Germany and India.

Facebook Ireland challenged the jurisdiction of the Austrian Courts. It alleged that Mr Schrems could not be a “consumer” for the purposes of these proceedings due to his professional activities. Further, his use of Facebook was professional, it said. Mr Schrems could not therefore use the jurisdictional consumer privilege under the Brussels Regulation to sue a foreign entity in his own place of domicile. In addition, Facebook Ireland alleged that the same privilege was strictly personal and could not be used for assigned claims.

The Supreme Court of Justice in Austria has asked the CJEU to clarify these two issues.

The AG has opined that pursuing activities such as publishing, lecturing, operating websites, or fundraising for the enforcement of claims does not result in the loss of consumer status in respect of claims relating to one’s own Facebook account used for private purposes. Therefore, Mr Schrems should be considered a consumer for the purposes of his own claims arising from the private use of his own Facebook account. It is, however, for the Austrian court to verify this.

According to the AG, as a general rule consumer status depends on the nature and aim of the contract at the time it was entered into. An ulterior change in use may be taken into account only in exceptional cases. In cases where the nature and the aim of the contract are both private and professional, the consumer status may still be retained if the professional “content” is marginal. Knowledge, experience, civic engagement, or the fact of having reached certain renown due to litigation, do not in themselves prevent someone from being a consumer.

However, the AG said, a consumer entitled to sue a foreign entity in his own place of domicile, cannot invoke, at the same time as his own claims, claims on the same subject assigned by other consumers domiciled in other areas of the same Member State, in other Member States or in non-Member States. In the AG’s view, the jurisdictional consumer privilege is limited to the specific parties to the contract. Extending the rule to assigned claims would result in claims being concentrated in one jurisdiction and in forum shopping, the AG said. (Case C-498/16 Maximilian Schrems v Facebook Ireland Limited (Opinion of Advocate General) (14 November 2017) — to access the Opinion in full, go to the curia search form, type in the case number and follow the link).