Articles

Court of Appeal rejects the Belgian courts’ jurisdictional competence regarding Facebook Inc. and Facebook Ireland

Court of Appeal rejects the Belgian courts’ jurisdictional competence regarding Facebook Inc. and Facebook Ireland

Court of Appeal rejects the Belgian courts’ jurisdictional competence regarding Facebook Inc. and Facebook Ireland

13.10.2016

On 29 June 2016 the Court of Appeal of Brussels rejected the suit filed by the Belgian Privacy Commission against Facebook Inc., Facebook Ireland and Facebook Belgium. Its decision therefore reforms the earlier decision rendered on 9 November 2015 by the president of the Court of First Instance hearing the case seeking interim measures, which Facebook appealed against.

The president of the Court of First Instance condemned Facebook’s practice of collecting and registering personal data of millions of internet users on the Belgian territory who did not sign up to the social network site as a “manifest violation of privacy law”. Facebook did this by making use of the datr-cookie, which is automatically installed on browsers of non-Facebook members whenever they visit a Facebook. com webpage, and by using social plug-ins on third-party websites to communicate the information contained in the datr-cookie to Facebook. Consequently, the court ordered Facebook (i.e., Facebook Inc., Facebook Belgium and Facebook Ireland) to immediately cease registering the surfing behavior of these non-Facebook users and imposed a penalty of EUR 250,000 per day of non-compliance. On appeal the Court of Appeal concluded that Belgian courts lack the international jurisdictional competence to rule on the dispute against Facebook Ireland, where all data from Europe are being processed, and against Facebook Inc., the US-based parent company. According to the Court of Appeal, there are no applicable legal grounds that grant the Belgian courts such international jurisdiction. Firstly, the Data Protection Directive 95/46/EC does not have direct effect in the Belgian legal order and furthermore does not cover the aspect of international jurisdiction. Secondly, the Belgian Privacy Act only covers the competence of the supervisory data protection authority and not of the Belgian courts. Thirdly, the upcoming Data Protection Regulation 2016/679 will only enter into force by 2018. Finally, both Regulation 1215/2012 and the Belgian Code of International Private Law do not apply as the case does not concern “civil or commercial matters” because of the involvement of the Belgian Privacy Commission. In short, according to the Court of Appeal there is no legal ground in Belgian, European or international law which allows the Belgian Privacy Commission in this case to bring a claim concerning privacy violations on the Belgian territory before the Belgian courts. The Court of Appeal however does not elaborate on which courts do have international jurisdiction.

With respect to Facebook Belgium, which is a legal entity established in Belgium, the Court of Appeal states that the Belgian courts have jurisdiction effectively. However, the Court declares the initial lawsuit that the Belgian Privacy Commission brought in interim proceedings unfounded because an interim decision in summary proceedings can only be rendered if the measures being sought are found to be urgent. The Court found this condition of urgency not fulfilled, mainly because the challenged practice of Facebook already dates back from 2011-2012, and Facebook had recently adapted its cookie policy by changing its cookie banner.

The merits of the case still have to be decided upon, which will only take place in September 2017.

 

Team

Related news

02.07.2019 NL law
Debate night: HR Analytics: opportunity or threat?

Seminar - On 2 July 2019, Stibbe's Digital Economy Group will host a debate night in Amsterdam on the hot topic of HR analytics. During Stibbe's debate night, speakers from the world of business, politics, science and law will exchange views on HR analytics, how they can be used in practice, and their development in the context of employment and privacy law.

Read more

07.06.2019 BE law
Part three - GDPR and public law: To retroact or not?

Articles - Since the General Data Protection Regulation (“GDPR”) became applicable almost one year ago, multiple questions have arisen about its interaction with other fields of law. In this three-part blog series of “GDPR and public law”, we discuss three capita selecta of the interaction of GDPR with public law and government. In this blog we discuss the retroactive application of GDPR.

Read more

21.06.2019 NL law
Nieuw boetebeleid van de Autoriteit Persoonsgegevens

Short Reads - Op 14 maart 2019 zijn de nieuwe Boetebeleidsregels Autoriteit Persoonsgegevens 2019 ("Boetebeleidsregels") van de Autoriteit Persoonsgegevens ("AP") gepubliceerd. Dit boetebeleid heeft de AP opgesteld vanwege de inwerkingtreding van de Algemene verordening gegevensverwerking ("AVG") en omdat er op Europees niveau nog geen boeterichtsnoeren zijn opgesteld.

Read more

06.06.2019 BE law
TMT Roundtable: Getting a handle on software quality

Roundtable - Erik Valgaeren, TMT Partner at Stibbe Brussels, and his team organize a roundtable on software quality in our Brussels office on June 6th, 2019. Software quality is a recurring theme in many matters handled by our TMT team. Whether our assistance relates to preparing tender documents, contracting effectively, assessing proper performance or allocating ownership and accountability in challenging IT projects, questions concerning software quality always arise.

Read more

06.06.2019 NL law
Masterclass: Alcohol and drug testing in the workplace

Masterclass - Stibbe will host a masterclass entitled 'Alcohol and drug testing in the workplace' on 6 June in Amsterdam. During this masterclass, employment law expert Johan Zwemmer and privacy experts Frederiek Fernhout and Judica Krikke will discuss the Dutch Data Protection Authority's general prohibition of these tests and discuss whether and how employers should implement.

Read more

Our website uses functional cookies for the functioning of the website and analytic cookies that enable us to generate aggregated visitor data. We also use other cookies, such as third party tracking cookies - please indicate whether you agree to the use of these other cookies:

Privacy – en cookieverklaring