National Security, Privacy, Data Protection and Retention, Protection of Sources, Surveillance
Ben Meir v. Prime Minister
On Appeal Contracts Expression
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The President of the Belgian Court in Brussels adopted a Recommendation issued by the Belgian Privacy Commission finding that Facebook was violating Belgian law by tracking non-users on Facebook’s site. Following an appeal by Facebook, the Court of Appeal in Brussels dismissed the case on 8 May 2019 for lack of jurisdiction over the appellant because Facebook is headquartered in Dublin, Ireland and has no physical base of operations in Belgium. For that reason, the Court of Appeal referred the case to the European Court of Justice for preliminary rulings to determine if the Commission could pursue a case against Facebook Belgium BVBA (the appellant’s domestic counterpart) instead of the appellant, following the introduction of the GDPR and its ‘one-stop shop’ mechanisms.
Columbia Global Freedom of Expression notes that some of the information contained in this report was derived from secondary sources.
On 16 February 2018, the Court of First Instance of Brussels ruled that Facebook was non-compliant with Belgian cookie and privacy legislation, and ordered it to cease its current practices or face a maximum penalty of 100 million Euros. Facebook argued that it only needed to comply with Irish law, given its headquarters were in Ireland. The Court disagreed, finding that substantial activities were conducted in Belgium, therefore establishing sufficient contact to fall under Belgian jurisdiction. The Court did not issue a ruling on Facebook’s policies regarding users, and it is unclear if the Court adopted this portion of the recommendation.
Facebook then appealed to the Court of Appeal.
The Court of Appeal dismissed the case on 8 May 2019 for lack of jurisdiction over Facebook. Crucially, no judgment on the merits was made available as the Court held that it only had jurisdiction with respect to Facebook Belgium BVBA for matters occurring after 25 May 2018 (the date of the GDPR’s entry into effect) – that is, the Court held it had no international jurisdiction to cover a case concerning Facebook Ireland Limited and Facebook Inc (its American counterpart), even if Facebook was tracking Belgian non-users through cookies.
For that reason, the Court of Appeal has now referred the case to the Court of Justice of the European Union (CJEU) to determine if the Commission can still pursue a case against Facebook Belgium BVBA following the introduction of the GDPR. This is important, as the GDPR has now increased the powers of supervisory authorities such as the Commission and introduced a ‘one-stop-shop’ mechanism for cross-border data processing (whereby one member state’s lead authority has the primary responsibility for dealing with a cross-border data processing activity).
The Court has requested a preliminary ruling from the CJEU on the following six questions:
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision of the Brussels lower Court expanded expression through the protection of the privacy rights of non-users who are accessing Facebook. The Belgian Court ruled Facebook’s practice of tracking these non-users utilizing “cookies” violated Belgian law.
However, on appeal the decision was overturned when the Brussels Appeals Court found that Belgium was without jurisdiction to decide the issue, even though Facebook is tracking non-users in Belgium. Now Facebook may continue tracking non-users through the use of “cookies” on their website in Belgium.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
As a decision of the Appeals Court in Brussels, this decision will bind the trial court in Belgium.
Let us know if you notice errors or if the case analysis needs revision.