The Irish arm of Facebook-parent company Meta has brought a High Court challenge against a proposed immediate ban on its Facebook and Instagram platforms from processing personal data for use in behavioural advertising.
The action arises after the tech giant was last week served with an enforcement notice by the Data Protection Commission informing Meta Platforms Ireland Ltd that it had seven days to cease processing data for use in advertising based on users’ online activities and interests.
Any failure to comply with the enforcement notice is a criminal offence and could also see the company being fined, Mr Justice Cian Ferriter was told.
The applicant, formerly known as Facebook Ireland, is a subsidiary of the US owner of Facebook, Instagram, and WhatsApp, and is the controller and service provider for Meta’s platforms in the European region.
The proposed ban would affect how the platforms do business across Europe.
Represented by Declan McGrath SC, Emily Egan McGrath SC with Shelley Horan BL, Meta asked the court to quash the enforcement order on grounds including that it is vague and unclear in terms of what the company has to do to be incompliant with its obligations under GDPR.
It also claims that the decision to issue the notice amounts to a breach of Meta’s legitimate expectation of a fair hearing and fair procedures.
Meta further claimed that the decision renders certain sections of the 2018 Data Protection Act, the legislation which established the Data Protection Commission (DPC), unconstitutional.
Both Ireland and the Attorney General have been included as respondents to Meta’s proceedings.
It claims that the proposed ban would prevent Facebook and Instagram from using users’ personal information to inform and provide details to advertisers.
The DPC issued the enforcement notice after the European Data Protection Board (EDPB), the EU’s data protection authority that oversees the application of the GDPR and other data protection rules, issued a binding decision requiring the Irish data protection body to act against Meta.
Meta said that Facebook and Instagram’s processing of data for behavioural advertising had been the subject of probes by the DPC into alleged data protection breaches.
Meta had denied the breaches and had claimed that it was allowed under Article 6 of GDPR to process the data in question on the legal grounds of “contractual necessity” and “legitimate interest”.
Those arguments were ultimately not accepted when the issue was referred to the EDPB.
Counsel said that the findings against it are already the subject of separate legal challenges before the domestic and European courts.
Meta also claims that it was seeking to have its consent-based solution to the issues assessed by the DPC, which if accepted would ensure its compliance with its GDPR obligations.
Earlier this month it was made aware of the EDPB’s binding decision on the DPC.
On 14 November last received the enforcement notice which was issued by the DPC some four days earlier.
Mr McGrath said the main problem from his client’s point of view was the prospect of a criminal sanction for any non-compliance.
Counsel said that given the vague nature of the enforcement order, Meta had asked the DPC to clarify what it needed to do so it would not be in breach of the order.
No response in relation to that issue was given to Meta, counsel said, adding that the order was due to come into effect sometime tomorrow.
As a result, his client had no option other than to bring fresh proceedings against the enforcement order.
After considering Meta’s submissions, Mr Justice Ferriter, on an ex-parte basis, granted Meta permission to bring its judicial review action.
The judge said that he was also prepared to grant a temporary stay on the enforcement notice from coming into effect.
The judge said that given the serious criminal consequences that could arise and the relatively short time that Meta had been given to comply with the notice, the judge said that the balance of justice favoured the granting of a short interim stay.
The matter will return before the court later this week.
The judge said he was giving all sides liberty to return before the court before the matter is next should the need arise.