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.
Carolien Michielsen
Junior Associate
carolien.michielsen@stibbe.com
