Hello everyone and welcome to ZD Tech, the ZDNet editorial podcast. My name is Louis Adam and today I will discuss with you Max Schrems, an Austrian student who changed the lines of European data protection law.
Schrems 1 and Schrems 2: these are the names given to two major judgments of the European Court of Justice, delivered in 2015 and 2020. These two court decisions have reshuffled the cards in terms of the legal framework for exporting personal data . They put an end to the Safe Harbor and the Privacy Shield, two agreements between the United States and Europe to simplify the exchange of transatlantic personal data. And as the name suggests, we owe these two judgments to the legal action of Max Schrems.
In 2011, the Austrian law student is not entirely unknown, but few people in Europe have heard of him. At the time, he engaged in the fight for privacy and the protection of personal data. And quickly, he’s going to tackle a really big chunk: Facebook. The start of a long legal war with the social network, which continues today.
First blow of brilliance
Let’s start with Schrems 1.
In 2013, Max Schrems attacked Facebook based on the revelations of Edward Snowden. The published documents show that Facebook works with the American intelligence services, and that its users’ data is therefore not as protected and confidential as the social network claims. After several back and forths before the Irish courts, the case lands before the judges of the CJEU, the European Court of Justice. This decides the subject and agrees with Max Schrems. With a significant consequence: it invalidates by the same decision the Safe Harbor, a text which until then framed the exchange of personal data between Europe and the United States.
This 2015 decision is a small earthquake in terms of personal data law. But it is not the last.
We take the same and start again
Quickly, the European Commission and the American government reached a new agreement governing the exchange of data, called Privacy Shield. The text proposes a revised version, with new commitments for both parties in terms of the protection of personal data. But many gray areas remain, in particular on the question of access by American intelligence to data of Europeans processed by American companies.
Max Schrems therefore attacks the new text, still in the context of his proceedings against Facebook. And it relies on much of the same arguments as for Safe Harbor. One would have thought that the drafters of the new text would have learned the lesson, but no: in July 2020, the CJEU issued its opinion and in turn invalidated the Privacy Shield.
This is the Schrems 2 decision. Since then, we are still waiting for a new text to regulate data exchanges between Europe and the United States. And Max Schrems is still awaiting a decision in his dispute with Facebook. He himself is not sure if he will ever get it, but along the way he can already boast of having obtained two major decisions for European law.
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