Luxembourg, Nov 14 Austrian activist Max Schrems can not bring a class action against Facebook for privacy breaches, although he is allowed to sue the U.S. social media giant on a personal basis, the adviser to the EU's top court said today.
The advocate general to the European Court of Justice, Michal Bobek, said in a legal opinion that Schrems "may be able to rely on his consumer status in order to sue Facebook Ireland before the Austrian courts".
"Today's opinion supports the decisions of two courts that Mr Schrems's claims can not proceed as "class action" on behalf of other consumers in Austrian courts", a Facebook spokesman said in a statement to AFP.
Facebook initially disputed the jurisdiction of the Austrian courts in hearing such a claim, so the Austrian supreme court referred the matter to the ECJ in Luxembourg.
"The outcome would be that thousands of courts in the whole European Union would have to deal with an identical, but local lawsuit against Facebook", he said.
In addition to alleging that Facebook violated his own privacy and data-protection rights, he purports to represent seven Facebook users domiciled in Austria, German and India.
Class action suits, in which many people sue together, are not as common in Europe as they are in the U.S., but Schrems argued that individual Facebook users could not afford the legal costs of individually fighting their cases against the Silicon Valley tech giant.
Since 2010, he had used a Facebook account under his own name, spelled using the Cyrillic alphabet, for his private use.
Since 2011, he had used another Facebook page, containing information about lectures, participations in panel debates, media appearances, books he had written, a fundraiser he had launched and information about the legal proceedings he had initiated against Facebook Ireland.
The court heard he had assembled a team of ten individuals, with a core of five, to support him in "his campaign against Facebook".
Austria's Supreme Court asked for clarification on two questions: whether Schrems use of Facebook is professional must be considered professional because of his creation of a Facebook page, and whether the jurisdictional consumer privilege is strictly personal - not to be relied on for assigned claims.
Bobek said that publishing or lecturing in the field "do [es] not entail the loss of consumer status" for claims about a private, personal Facebook account.
Only in "exceptional scenarios" could an ulterior change in the account's use be taken into account.
The Advocate General held that Mr Schrem's knowledge, experience, civic engagement or the fact of having become famous for his legal action against Facebook did not in themselves prevent him from being a consumer.
"However, Mr Schrems can not rely on his consumer status with respect to claims assigned to him by other consumers".
Bobek said this would allow the concentration of claims in one jurisdiction - and to "choose the place of the more favourable courts" - that could lead to overburdening some jurisdictions.
Class actions in the European Union would mean litigants could effectively shop around the bloc for the "more favourable courts", lower costs or better legal aid, potentially overburdening some countries, the advocate general added.
The Data Protection Commissioner, Helen Dixon, took action at the High Court, urging the transfer of the case to the Court of Justice of the EU.
The full judgement on the case will be delivered in a number of months' time.
Although the court typically follows the officer's opinions, they are non-binding.