Vienna Judge delivers "non-judgment" in Facebook case

01 July 2020

A judge of the Vienna Regional Court delivered a written judgment (PDF, German) in a long-lasting civil case on Facebook yesterday night. Despite summarizing detailed facts about Facebook's illegal data use, no real analysis or decision on the legal arguments was undertaken. Within the 39 page "judgment" there are only 19 short sentences on Data Protection Law. The judge apparently wanted to leave these issues to the Superior Courts. Schrems: "I am glad that after 6 years we are finally done with this particular judge and can move on to courts that are willing to clarify these important legal issues."

Data protection? This is something for the superior courts! The GDPR is not the easiest read. That's probably also what the judge at the Regional Court for Civil Matters ("Landesgericht für Zivilrechtssachen") in Vienna thought to herself. Already during the oral hearing the judge announced that she wants to concentrate her work on the facts of the case, because the legal assessment, whether Facebook complies with the GDPR or not, will end up in higher courts anyway. In the Austrian legal system, the facts are, however, hardly re-examined by the superior courts. Now the "decision" (PDF, German) was issued. While it contained 36 pages of detailed summary of the facts, there are only a good two pages of proforma analysis of the GDPR. It is a judgement in name only.

Max Schrems, honorary chairman of "The judge already said during the hearing that she is focusing on the facts because the tricky legal questions will be clarified by the higher courts anyway. The decision is nevertheless somewhat grotesque: the illegal data processing of Facebook is described on 36 pages - but in 19 sentences almost all the points of law are dismissed without real analysis. Only full access to my personal data and € 500 symbolic damages were granted. The judge obviously did not want to deal with all the tricky questions whether Facebooks' use of personal data is in fact legal under the GDPR."

Judge declared herself "not competent" twice before. Since 2014 the civil lawsuit between Max Schrems and Facebook has been running in Vienna. Facebook has tried to block the lawsuit from going ahead multiple times. Based on these attempts, the same judge had already declared herself "not competent" twice before, which was revised by the Austrian Supreme Court each time and once even led to a referral to the CJEU. The judge now had to actually conduct the proceedings (in a third round of proceeding). The endless attempts to block  the case took several years and led to significant costs.

Schrems: "As an average citizen, you can neither afford to engage in these fights, nor do people have the nerves to insist on their rights for that long. Right now we have a right to privacy on paper, but if somebody files a lawsuit, decision makers often pass the case on because they don't want to deal with it. To be honest, I'm glad we don't have to deal with this particular local judge anymore."

19 sentences that raise doubts. However, those 19 sentences in which the judgment "analyses" Facebook's compliance with the GDPR (the final pages) are full of absurdities: Facebook allegedly does not violate the GDPR because users have entered into a "data processing agreement". If they don't want Facebook to misuse their data, users should simply leave the plattform. In the case of "sensitive" data on political interests or sexual orientation, the judgment simply argues that the interest in a political party or the same sex does not necessarily imply political opinions or sexual orientation.

Schrems: "The few parts where the judgment attempt to analyze the GDPR probably explain why this was limited to 19 sentences. Data protection experts probably only laugh about these findings. These few sentences will face the same reality as the previous two judgments: The higher Courts will overturn them in no time."

Judgment will be appealed. Since the judgment also states that Facebook must release all of the plaintiff's data and pay symbolic damages of €500, we currently assume that both parties will appeal the case to the Vienna Higher Regional Court ("Oberlandesgericht Wien"). Mr Schrems will definitely file an appeal within the deadline of four weeks.

Schrems: "After six years before this rather 'particular' judge at the local court, we are finally getting to the Superior Courts where we can clarify really important GDPR issues. It is not unlikely that we will also get some questions referred to the European Court of Justice. This would mean that Facebook can no longer apply its bizarre interpretations of the GDPR, but must grant users throughout Europe their full rights under the GDPR".