Facebook’s problems with European privacy law could be about to get a whole lot worse. But ahead of what may soon be a major (and long overdue) regulatory showdown over the legality of its surveillance-based business model, Ireland’s Data Protection Commission (DPC) is facing a Facebook-shaped problem of its own: It’s now the subject of a criminal complaint alleging corruption and even bribery in the service of covering its own backside (we paraphrase) and shrinking the public understand of the regulatory problems facing Facebook’s business.
European privacy campaign group noyb has filed the criminal complaint against the Irish DPC, which is Facebook’s lead regulator in the EU for data protection.
noyb is making the complaint under Austrian law — reporting the Irish regulator to the Austrian Office for the Prosecution of Corruption (aka WKStA) after the DPC sought to use what noyb terms “procedural blackmail” to try to gag it and prevent it from publishing documents related to General Data Protection Regulation (GDPR) complaints against Facebook.
The not-for-profit alleges that the Irish regulator sought to pressure it to sign an “illegal” non-disclosure agreement (NDA) in relation to a public procedure — its complaint argues there is no legal basis for such a requirement — accusing the DPC of seeking to coerce it into silence, as Facebook would surely wish, by threatening not to comply with its regulatory duty to hear the complainant unless noyb signed the NDA. Which is quite the (alleged) quid-pro-quo.
The letter sent by the DPC to noyb seeking an agreement to maintain the confidentiality of all material relating to objections by other DPAs (as well as any associated observations by the data controller (Facebook), complainant (noyb et al), DPC or other EU supervisory authorities) vis-a-vis a draft decision related a complaint against Facebook that’s undergoing an active dispute resolution procedure — “on the grounds that such arrangements are necessary to preserve/maintain free and frank exchanges” and to ensure that “interim views” are not aired in order to “preserve the confidentiality and integrity of the co-decision-making procedure” as the DPC’s letter circularly demands — has been published by noyb here (redacting the name/s of the DPC officer/s who put their name/s to the demand).
“The DPC acknowledges that it has a legal duty to hear us but it now engaged in a form of ‘procedural coercion’,” said noyb chair, Max Schrems, in a statement. “The right to be heard was made conditional on us signing an agreement, to the benefit of the DPC and Facebook. It is nothing but an authority demanding to give up the freedom of speech in exchange for procedural rights.”
The regulator has also demanded noyb remove documents it has previously made public — related to the DPC’s draft decision of a GDPR complaint against Facebook — again without clarifying what legal basis it has to make such a demand.
Ireland’s draft GDPR decision against Facebook branded a joke
As noyb points out, it is based in Austria, not Ireland — so is subject to Austrian law, not Irish law. But, regardless, even under Irish law it argues there’s no legal duty for parties to keep documents confidential — pointing out that Section 26 of the Irish Data Protection Act, which was cited by the DPC in this matter, only applies to DPC staff (“relevant person”), not to parties.
“Generally we have very good and professional relationships with authorities. We have not taken this step lightly, but the conduct of the DPC has finally crossed all red lines. The basically deny us all our rights to a fair procedure unless we agree to shut up,” added Schrems.
He went on to warn that “Austrian corruption laws are far reaching” — and to further emphasize: “When an official requests the slightest benefit to conduct a legal duty, the corruption provisions may be triggered. Legally there is no difference between demanding an unlawful agreement or a bottle of wine.”
All of which looks exceptionally awkward for the Irish regulator. Which already, let’s not forget — at the literal start of this year — agreed to “swiftly” finalize another fractious complaint made by Schrems, this one relating to Facebook’s EU-US data transfers, and which dates all the way back to 2013, following noyb bringing a legal procedure.
(But of course there’s still no sign of a DPC resolution of that Facebook complaint either… So, uhhh, ‘Siri: Show me regulatory capture’… )
Last month noyb published a draft decision by the DPC in relation to another (slightly less vintage) complaint against Facebook — which suggested the tech giant’s lead EU data regulator intended not to challenge Facebook’s attempt to use an opaque legal switch to bypass EU rules (by claiming that users are actually in a contract with it receive targeted ads, ergo GDPR consent requirements do not apply).
The DPC had furthermore suggested a wrist-slap penalty of $36M — for Facebook failing transparency requirements over the aforementioned ‘ad contract’.
That decision remains to be finalized because — under the GDPR’s one-stop-shop mechanism, for deciding cross-border complaints — other EU DPAs have a right to object to a lead supervisor’s preliminary decision and can ratchet out a different outcome. Which is what noyb is suggesting may be about to happen vis-a-vis this particular Facebook complaint saga.
Winding back slightly, despite the EU’s GDPR being well over three years old (in technical application terms), the DPC has yet to make a single final finding against Facebook proper.
So far it’s only managed one decision against Facebook-owned WhatsApp — which resulted in an inflated financial penalty for transparency failures by the messaging platform after other EU DPAs intervened to object to a (similarly) low-ball draft sanction Ireland had initially suggested. In the end WhatsApp was hit with a fine of $267M — also for breaching GDPR transparency obligations. A notable increase on the DPC’s offer of a fine of up to $56M.
The tech giant is appealing that penalty — but has also said it will be tweaking its privacy policy in Europe in the meanwhile. So it’s a (hard won) win for European privacy advocates — for now.
The WhatsApp GDPR complaint is just the tip, of course. The DPC has been sitting, hen-like, on a raft of data protection complaints against Facebook and other Facebook-owned platforms — including several filed by noyb on the very the day the regulation came into technical application all the way back in May 2018.
These ‘forced consent’ complaints by noyb strike at the heart of the headlock Facebook applies to users by not offering them an opt-out from tracking based advertising. Instead the ‘deal’ Facebook (now known as Meta) offers is a take-it or leave-it ‘choice’ — either accept ads or delete your account — despite the GDPR setting a robust standard for what can legally constitute consent that states it must be specific, informed and freely given.
Arm twisting is not allowed. Yet Facebook has been twisting European’s arms before and since the GDPR, all the same.
So the ‘forced consent’ complaints — if they do ever actually get enforced — have the potential to purge the tech giant’s surveillance-based business model once and for all. As, perhaps, does the vintage EU-US data transfers issue. (Certainly it would crank up Facebook’s operational costs if it had to federate its service so that Europeans’ data was stored and processed within the EU to fix the risk of US government mass surveillance.)
Facebook, Google face first GDPR complaints over ‘forced consent’
However, per the draft DPC decision on the forced consent issue, published (by noyb) last month, the Irish regulator appeared to be preparing to (at best) sidestep the crux question of the the legality of Facebook’s data mining, writing in a summary: “There is no obligation on Facebook to seek to rely solely on consent for the purposes of legitimising personal data processing where it is offering a contract to a user which some users might assess as one that primarily concerns the processing of personal data. Nor has Facebook purported to rely on consent under the GDPR.”
noyb has previously accused the DPC of holding secret meetings with Facebook around the time it came up with the claimed consent bypass and just as the GDPR was about come into application — implying the regulator was seeking to support Facebook in finding a workaround for EU law.
The not-for-profit also warned last month that if Facebook’s relabelling “trick” (i.e. switching a claim of ‘consent’ to a claim of ‘contract’) were to be accepted by EU regulators it would undermine the whole of the GDPR — making the much lauded data protection regime trivially easy for data-mining giants to bypass.
Likewise, noyb argues, had it signed the DPC’s demanded NDA it would have “greatly benefited Facebook”.
It would also have helped the DPC by keeping a lid on the awkward detail of lengthy and labyrinthine proceedings — at a time when the regulator is facing rising heat over its inaction against big tech, including from lawmakers on home soil. (Some of which are now pushing for reform of the Commission — including the suggestion that more commissioners should be recruited to remove sole decision-making power from the current incumbent, Helen Dixon.)
“The DPC is continuously under fire by other DPAs, in public inquiries and the media. If an NDA would hinder noyb’s freedom of speech, the DPC’s reputational damage could be limited,” noyb suggests in a press release, before going on to note that had it been granted a benefit by signing an NDA (“in direct exchange for the DPC to conduct its legal duties”) its own staff could have potentially committed a crime under the Austrian Criminal Act.
The not-for-profit instead opted to dial up publicity — and threaten a little disinfecting sunlight — by filing a criminal complaint with the Austrian Office for the Prosecution of Corruption.
It’s essentially telling the DPC to put up a legal defence of its procedural gagging attempts — or, well, shut up.
Here’s Schrems again: “We very much hope that Facebook or the DPC will file legal proceedings against us, to finally clarify that freedom of speech prevails over the scare tactics of a multinational and its taxpayer-funded minion. Unfortunately we must expect that they know themselves that they have no legal basis to take any action, which is why they reverted to procedural blackmail in the first place.”
Nor is noyb alone in receiving correspondence from the DPC that’s seeking to apply swingeing confidentiality clauses to complainants.
Following publication of noyb’s criminal complaint, Johnny Ryan, a fellow at the Irish Council for Civil Liberties, tweeted that it received a “confidentiality demand” from the DPC in relation to a GDPR complaint raised against Google’s adtech — suggesting the regulator is seeking to use the same threat of silence or be removed from the proceeding against another complainant against big tech.
“Everything I and my lawyers read would be tracked in a ‘data room’. Otherwise, DPC withholds all materials from us (including Google docs that are already public),” he wrote.
DPC also sent us a confidentiality demand -in my complaint v mega Google RTB data breach.
It is 6,429 words long.
Everything I and my lawyers read would be tracked in a “data room”. Otherwise, DPC withholds all materials from us (including Google docs that are already public).
— Johnny Ryan (@johnnyryan) November 23, 2021
TechCrunch has also reviewed correspondence sent to the Irish regulator earlier this fall by (yet) another complainant — who writes to query its legal basis for a request to gag disclosure of correspondence and draft reports.
Despite repeated requests for clarification by the complainant, the DPC appears to have entirely failed — over the course of more than a month — to reply to the request for its legal basis for making such a gag request.
This suggests noyb’s experience of threats and scare tactics lacking legal substance is not unique — by looks rather more like modus operandi — backing up its claim that the DPC has questions to answer about “how it conducts its office”.
We’ve reached out to the DPC for comment on the allegations it’s facing.
But what about Facebook? noyb’s press release goes on to predict a “tremendous commercial problem” looming for the data-mining giant — as it says DPC correspondence “shows that other European DPAs have submitted ‘relevant and reasoned objections’ and oppose the DPC’s view” [i.e. in the consent bypass complaint against Facebook].
“If the other DPAs have a majority and ultimately overturn the DPC’s draft decision, Facebook could face a legal disaster, as most commercial use of personal data in the EU since 2018 would be retroactively declared illegal,” noyb suggests, adding: “Given that the other DPAs passed Guidelines in 2019 that are very unfavourable to Facebook’s position, such a scenario is highly likely.”
The not-for-profit has more awkward revelations for the DPC and Facebook in the pipe, too.
It says it’s preparing fresh document releases in the coming weeks — related to correspondence from the DPC and/or Facebook — as a “protest” against attempts to gag it and to silence democratic debate about public procedures.
“On each Sunday in advent, noyb will publish another document, together with a video explaining the documents and an analysis why the use of these documents is fully compliant with all applicable laws,” it notes, adding that what it’s billing as the “advent reading” will be published on noyb.eu — “so tune in!”.
So looks like the next batch of ‘Facebook Papers‘ that Meta would really rather you didn’t see will be dropping soon…
via GIPHY
This report has been updated with a link to the DPC’s letter to noyb; and with Johnny Ryan’s confirmation of another confidentiality demand by the regulator in its complaint against Google’s adtech
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