Data Protection Commissioner v Facebook Ireland Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 20 February 2017
• Neutral Citation: [2017] IEHC 105
• Docket Number: [2016 No. 4809 P.]
• Court: High Court
• Date: 20 February 2017

[2017] IEHC 105

THE HIGH COURT

COMMERCIAL

Costello J.

[2016 No. 4809 P.]

BETWEEN

THE DATA PROTECTION COMMISSIONER

PLAINTIFF

AND

FACEBOOK IRELAND LIMITED

AND

MAXIMILLIAN SCHREMS

DEFENDANTS

International law – Art. 96 of the Rules of Procedure of the Court of Justice of the European Union (CJEU) – Involvement of amici curiae – Leave to file affidavits – Expert evidence – Nature of assistance

Facts: Following the order of the High Court permitting four amici curiae to join the present proceedings, the three of the four amici curiae had filed the present application seeking leave to file affidavits in the substantive action. The amici curiae asserted that it would not be possible for the Court to procure the expert evidence that could be adduced by them in case the High Court decided to make a reference to the Court of Justice of the European Union (CJEU) and thus, it was imperative that they should be permitted to file affidavits.

Ms. Justice Costello refused to grant leave to the amici curiae to file the relevant affidavits. The Court held that the function of the amicus curiae was to assist the Court and it was the general rule that an amicus curiae would not give evidence. The Court found that in the present case, the plaintiffs sought declaration in relation to the standard contractual clauses as they applied to data transfers from European Economic Area (EEA) to the United States and reference to CJEU for ruling in that regard. The Court found that the amici curiae in the present case would be able to provide the much needed advice without adducing the evidence. The Court observed that the expert evidence of the professor who dealt with the US law and practice as offered by one of the amici curiae would be limited to only questions of law. The Court held that he had already sought the opinions of five experts pertaining to the US law and thus, there was no need for any of the amici curiae to adduce the evidence.

JUDGMENT of Ms. Justice Costello delivered on the 20th day of February, 2017

1 On the 19th of July, 2016, McGovern J. joined four parties to the proceedings as a mici curiae. On the 25th of July, 2016, he directed that the issue as to whether the amici curiae will be entitled to rely on affidavits they deliver is to be decided by the court. This is my ruling on the application by three of the four amici curiae for leave to deliver three affidavits.

2 It is clear from the order and judgment of McGovern J. that he envisaged that the amici could assist the trial court whether or not they were permitted to file affidavits. It is also clear that he was of the view that the court had discretion whether or not to permit the amici to file affidavits. At paras. 15 and 16 of his judgment admitting four amici curiae but refusing the application of six applicants delivered on the 19th of July, 2016, [2016] IEHC 414 he stated:

'These proceedings do involve issues of public law. But they are not, in any real sense, a lis inter partes. One of the reliefs sought by the plaintiff is a reference to the CJEU. It is accepted by all the applicants that, if a reference is made, they cannot be heard before the CJEU unless they were involved in some way before the court of first instance. (See: Article 96 of the Rules of Procedure of the Court of Justice of the European Union.)

16. Because there is no factual dispute or lis inter partes in these proceedings, the applicants argue that the usual rule, excluding the involvement of an amicus curiae at the first instance hearing, does not apply. Furthermore, when the issues raised in the proceedings are almost certain to involve a reference to the CJEU, it is essential that any party who has a right to be heard as an amicus curiae should be heard in the proceedings before the High Court. It seems to me that this is a reasonable view.'

3 It seems clear therefore that he permitted the four amici curiae to be joined in order that they not be excluded from a hearing before the Court of Justice of the European Union if the High Court makes a reference, as requested by the plaintiff. Secondly, he accepted the arguments advanced by the applicants that there was no factual dispute or lis inter partes in the proceedings such as would lead to the exclusion of an amicus curiae at the first instance hearing.

4 There was nothing in his judgment to suggest that in order to fulfil their role of assisting the High Court in its determinations that the amici curiae needed to adduce evidence. In relation to the BSA (the Business Software Alliance), he stated that they should be in a position to offer views which might not otherwise be available to the court. In relation to Digital Europe, he held it would be in a position to assist the court by bringing to bear its expertise in a way which might not otherwise be available to the court. In relation to EPIC (Electronic Privacy Information Centre), he said it would be in a position to offer a counterbalancing perspective from the US government on the position...