When are U.S. social media companies subject to European data privacy laws? As we reported in 2013, the answer is often contingent on geographic location – where the relevant data is processed. In 2013, for example, a German court ruled that Facebook was not subject to German data protection laws because the relevant data was processed in Ireland, not Germany.

However, in 2014, a different German court at the same level found, in a separate case, that Facebook could be subject to German data protection laws, finding that the relevant data was processed outside the E.U. in the United States rather than Ireland.

But geography isn’t everything.  As an Austrian court decision last week makes clear, the location of data processing is not the only potential hurdle for would-be plaintiffs bringing suit against U.S. companies in the E.U. The Vienna Regional Court dismissed a case against Facebook, not because of national borders, but because of the identity of the plaintiff and how he used his Facebook accounts.

The Austrian suit was brought by Max Schrems, an Austrian national and outspoken privacy advocate. Mr. Schrems alleged that Facebook violated European data protection laws in the way it collects and uses the personal data of its users, including that Facebook improperly tracks users through external websites using its “Like” buttons, and that Facebook shares user data with external applications without consent. While Austria does not have U.S.-style class action procedures, Mr. Schrems invited other Facebook users to join the lawsuit, and over 25,000 signed on, claiming €550 in damages each.

Facebook argued the suit should be brought in California, where Facebook is headquartered, or Ireland, the site of Facebook’s international headquarters. While the court did not opine on where the case should be filed, it agreed the case should not be in Austria. It ruled Mr. Schrems used his Facebook accounts for professional reasons – for publicity and to further his career as a privacy activist – and that he had a commercial interest in the outcome of the case. So, the court reasoned, he could not be considered a Facebook consumer under Austrian law and thus could not rely on Austrian laws that allow private consumers to take legal action in their place of residence.

While the decision is a victory for Facebook, it may not be the last word, as Mr. Schrems has stated he intends to appeal. Watch this blog for more as the critical issue of international jurisdiction in E.U. data privacy lawsuits continues to unfold.

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Photo of David Munkittrick David Munkittrick

David Munkittrick is a litigator and trial attorney. His practice focuses on complex and large-scale antitrust, copyright and entertainment matters in all forms of dispute resolution and litigation, from complaint through appeal.

David has been involved in some of the most significant antitrust…

David Munkittrick is a litigator and trial attorney. His practice focuses on complex and large-scale antitrust, copyright and entertainment matters in all forms of dispute resolution and litigation, from complaint through appeal.

David has been involved in some of the most significant antitrust matters over the past few years, obtaining favorable results for Fortune 500 companies and other clients in bench and jury trials involving price discrimination and group boycott claims. His practice includes the full range of antitrust matters and disputes: from class actions to competitor suits and merger review. David advises antitrust clients in a range of industries, including entertainment, automotive, pharmaceutical, healthcare, agriculture, hospitality, financial services, and sports.

David also advises music, publishing, medical device, sports, and technology clients in navigating complex copyright issues and compliance. He has represented some of the most recognized names in entertainment, including Sony Music Entertainment, Lady Gaga, U2, Madonna, Daft Punk, RCA Records, BMG Music Publishing, Live Nation, the National Academy of Recording Arts and Sciences, Universal Music Group and Warner/Chappell.

David maintains an active pro bono practice, supporting clients in the arts and in immigration proceedings. He has been repeatedly recognized as Empire State Counsel by the New York State Bar Association for his pro bono service, and is a recipient of Proskauer’s Golden Gavel Award for excellence in pro bono work.

When not practicing law, David spends time practicing piano. He recently made his Carnegie Hall debut at Weill Recital Hall with a piano trio and accompanying a Schubert lieder.

David frequently speaks on antitrust and copyright issues, and has authored or co-authored numerous articles and treatise chapters, including:

  • Causation and Remoteness, the U.S. Perspective, in GCR Private Litigation Guide.
  • Data Breach Litigation Involving Consumer Class Actions, in Proskauer on Privacy: A Guide to Privacy and Data Security Law in the Information Age.
  • Location Privacy: Technology and the Law, in Proskauer on Privacy: A Guide to Privacy and Data Security Law in the Information Age.
  • FTC Enforcement of Privacy, in Proskauer on Privacy: A Guide to Privacy and Data Security Law in the Information Age.
  • The Role of Experts in Music Copyright Cases, Intellectual Property Magazine.
  • Nonprofit Education: A Historical Basis for Tax Exemption in the Arts, 21 NYSBA Ent., Arts, & Sports L.J. 67
  • A Founding Father of Modern Music Education: The Thought and Philosophy of Karl W. Gehrkens, Journal of Historical Research in Music Education
  • Jackson Family Wines, Inc. v. Diageo North America, Inc. Represented Diageo in trademark infringement litigation