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Austrian trial: Facebook reproaches Schrems “pseudo-class action”
by Rudolf Faix Friday, April 10, 2015 11:37 AM

If the class action lawsuit by 25,000 Facebook users, who are represented by Max Schrems, approved in Vienna in court? That has been the question on Thursday at the beginning of the trial.

Max SchremsOn Thursday, the largest European Data Protection class action was heard on Regional Court for Civil Matters in Vienna in Hall 8. 25,000 Facebook users support the lawsuit, including 3700 Austrians.

At the start of the trial, it was mainly about the competence of the action in Vienna. Facebook denied that the Regional Court in Vienna has the right site to sue the US company. "Facebook has the opinion that they are nowhere actionable. Not in Eire, not in Vienna" explained the lawyer of Max Schrems in his plea that was directed especially to the many media representatives present in the room.

The hype was extreme. Many international journalists were represented. Schrems said: "The media coverage is bizarre. But if less through my activism, but rather caused by the defendant."

Not a "US-style class action"

The Viennese law firm acting for Facebook, called the class action as a "pseudo-class action". "The civil procedure law has no US-style class action, the applicant can go to California, where such methods are permitted." Said the Facebook lawyer Nicholas Pitkowitz in the courtroom from.

"Facebook does not want to be sued. Users do not need to travel to a country where they are not native. The idea of European legislation provides that every consumer can make at his residence claim the right to sue" replied the lawyer from Schrems, Wolfram Proksch.

Reproach: Schrems wants to earn money

The attorneys at Facebook imputed Max Schrems, who represents the Class Members that he is by himself not a consumer. "There is no privacy forum where Schrems is not at the podium," the argument. Reproach: he would make money.

This denies the attorney of Schrems in front of the court. Schrems is living from rental income and a minor job in a company. As evidence he presented the bank statements, as well as the Facebook profile entries that Schrems is making as a consumer. Schrems was still regularly active on Facebook.

Schrems even add at the hearing that he usually do not earn money by privacy panels. "I do not need much in life" said the doctoral student who continues his law degree at the University of Vienna. The question of whether he had ever been thinking to ask for a trade license was laughing denied by Schrems .

Privacy activists

Discussed got also that Schrems is called a "Privacy activists". His answer: "It is politically important to me, to do something for the privacy."

The 500 euros, which will be sought in the context of class action, should also be paid to other consumers. It is therefore not a "debt collection agency," as it Facebook has also accused in the process. The lawyers of Facebook also stiffen on quotes from media reports, on which they intend to nail Schrems.

"Student group"

In front of the court Schrems cleaned up with the myth of the “Vienese student group”. There had been about five friends who have also made a request for information to Facebook. A student group, had never existed. The association "europe-vs-facebook.org" exists. The attorneys at Facebook Schrems also tried to bring him out of concept with leading questions about his "employees".

But according to the lawyers of Facebook is it not possible to assign the rights of consumers to another consumer. The lawyer of Schrems brought the following example: "Just imagine that you have a friend in an EU country and get him a gift from Amazon. However, the product is insufficient. In this case the consumer can also cede claims."

No evidence of capacity

The attorneys at Facebook argued, however, also before the court so that Schrems did not adduce any evidence that proves the "capacity" of the Class represented by him. As these users have agreed to the terms and conditions, they were very well competent.

This Facebook subordinate to its users again "mass insanity" as Schrems already said his opinion on the written statement from Facebook. "For Facebook are their users only a data resource" can get read on Twitter.

Schrems stated at the hearing that he has requested passport or identity cards from all 25,000 class members, which have given a declaration of assignment, to verify the authenticity of their accounts. "These data are on an offline laptop with special hardened Linux operating system," Schrems said. The assignments have been cross-checked.

Also theme has been that Schrems had already introduced during 2011 complaints to the Irish data protection authority and therefore from the perspective of Facebook  Schrems cannot sue in Austria. The attorneys at Facebook saw this as a problem. Schrems claimed to have withdrawn 22 of the 23 complaints already in July 2014.

The survey by the lawyers of Facebook was like an interrogation. Schrems was practically forced to disclose private details of his "friendships". Schrems said, after the hearing: "They have dug every crumb, there is." The lawyers of Facebook already informed before trial to not answer and questions after the first day of the trial.

Schrems was compared to the numerous journalists less taciturn: "I see my chances are good, otherwise I would not do the work myself." He likes to change anything in general and to enforcing all our fundamental rights.  “Will be our data in the future secure? That is the reason for the trial. Not to responsibilities", he referred to the fact that it did not go in the negotiation of content to privacy. "This is the strategy of Facebook, not to talk about data protection." The allegations of Facebook that he wanted to make money have been "totally baseless". "I deserve therefore not one cent."

The Regional Court of Vienna has given both sides three weeks to translate further documents. A decision on the admissibility of the action in Vienna will be given written after six weeks. This decision is likely to be opposed by other instances. Schrems even expects a "long process". "It takes just a long breath."

 

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I'm since more then 35 years in the computer business (programming and technical support) and using the Internet since it has started. Since 2002 I'm programming solutions for Asterisk and since 2004 I'm in the call center industry.

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