Facebook: a privacy defender or a privacy traitor?

"Facebook: a privacy defender or a privacy traitor? A glance on recent
jurisprudence"


The number of those quitting Facebook is alarmingly augmenting. Users that
permanently deactivate their Facebook accounts contend that they "sell
their identity online". According to a recent survey by Statcounter/Eircom
for 2013, a 48.3% of Facebook users have strong privacy concerns over the
storage of their personal data, whilst another 13.5% demonstrates a general
dissatisfaction over the way Facebook functions. Surprisingly, only 6% of
the questioned users confessed their fear of becoming addicted. According
to the same poll, more than half of residents in Canada, UK, Ireland, U.S,
Australia and New Zealand are active on Facebook. Ireland comes first with
63 per cent, followed by Australia, the UK and the US on 61, 55 and 47 per
cent, respectively.
It goes without saying that we are living in an era of technology. To
survive in this virtual world, one has to relinquish parts of their
personal life, daily. Facebook has altered its platform and applications
several times since 2004. The last changes regarding the functions of "last
active" , "seen" and "location" have been deemed to pose a threat to users'
privacy and intimacy. I do not have a clear view on whether this can be
characterised as a direct inhibition to the right to private correspondence
as enshrined in article 8 European Convention on Human Rights, but the most
certain about it is that Facebook is a living social-networking instrument
with millions of profiles, which it stores and –who knows- subsequently
shares with other sources. This is evident from the fact that there is an
"Account" option to "download one's Facebook profile".
In Greece, on a national scale, Facebook users are increasingly
prioritising social networking over their privacy rights. Virtual
friendships subdue intimacy and personal data. One's personal reputation,
integrity or even honor can be greatly harmed, in a single comment or a
photo that is uploaded.
In their application before the Court of First Instance in Athens, two
Greek attorneys requested for interim measures against "Facebook Ireland
Ltd". They argued that the functions of "last active" and "seen" which
respondent has activated in their accounts abridged their right to
personality , because it enabled the disclosure of their personal data to
third parties, even when offline, on the exact time of service from their
cell phones and the exact time instant reading of emails they receive from
other users through the service. The jurisdiction of the Greek courts is a
procedural requirement of the trial and plaintiff bears the burden of proof
invoked; those elements are founded ( as requested ) in Article 22 of Law
2472 / 1997 "Protection of individuals with regard to processing of
personal data" which provides criminal penalties for the listed categories
to "behavior deemed as criminal , in conjunction with the special
jurisdiction "of the court of the place where the harmful event occurred".
That is analogous to the tort under Article 5 Section 3 of the 2007 Lugano
Convention , which was ratified both by Ireland and Greece.
The main argument that was put forward in the application and thrived
during the hearing process was that the sense of guilt in torts or quasi-
delicts includes any claim , which deals with the liability of defendant
and not "differences of contract" within the meaning of Article 5 point 1
of the Convention . What is more, the legislative ambit of tort within
various types of offenses , such as breach of the general right of
personality , extends not only to "the party which caused the damage, but
also to any other tortfeasor unlawful act of another" . This provision is
indeed pursuant to Article 14 of Law No 2472/1997 (Protection of
Individuals with regard to processing of personal data ) , seeking
immediate suspension or non-application of the Act raised by the legal
subject, whose right to privacy has been infringed.
The court ruled that "the application filed and brought for hearing before
the court was inadmissible", founding the inadmissibility of the
application on Article 31 of Regulation 44/ 2001 EC of 22 December 2000 on
jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters .
It adjudicated that "both the jurisdiction of the Court and the
requirements founded on Article 31 of Regulation 44/2001 lack a legal
basis in the present case , since, as stated in the major premise of the
decision, "the Court that is competent to carry out the injunction is the
Court of Ireland , where respondent resides". Thus, the Greek Court
declared itself incompetent to hear the case.
It is self-evident that the national Court did not examine the
provisions regarding the jurisdiction of Member States' Courts in civil and
commercial claims under Regulation 44/ 2001 EC of 22 December 2000 on
"Jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters" .
Under Article 23 of the Regulation "if the parties, one of which is
domiciled in a Member State , have agreed that a court or the courts of a
Member State have jurisdiction to settle any disputes which have arisen or
which may arise from a particular legal relationship , that court or those
courts shall have jurisdiction . Such jurisdiction shall be exclusive
unless the parties have agreed otherwise."
Furthermore, Article 5 states that "a person domiciled in a Member State
may, in another Member State, be sued in matters relating to a contract, in
the courts for the place of performance of the obligation in question, for
the purpose of this provision and unless otherwise agreed, the place of
performance of the obligation in question shall be in the case of the sale
of goods, the place in a Member State where, under the contract, the goods
were delivered or should have been delivered or in the case of the
provision of services, the place in a Member State where, under the
contract, the services were provided or should have been provided".
In the second and third paragraph of the same article, it is stated that
"in matters relating to maintenance, in the courts for the place where the
maintenance creditor is domiciled or habitually resident or, if the matter
is ancillary to proceedings concerning the status of a person, in the court
which, according to its own law, has jurisdiction to entertain those
proceedings, unless that jurisdiction is based solely on the nationality of
one of the parties", whereas "in matters relating to tort, delict or quasi-
delict, in the courts for the place where the harmful event occurred or may
occur".
At this point, it would be of uttermost significance to make a reference
to settled case-law of the ECJ. The latter has held that the concept of
"tort , delict or quasi- delict" in Article 5, paragraph 3 of Regulation
No 44/2001 , covers any claim raising a question of liability of the
defendant and not a "contract" under Article 5, paragraph 1, point a, of
this Regulation. Moreover, a tort or quasi-delict may occur only on
condition that it can establish a causal link between the injury and the
fact that caused the damage.
The rule of special jurisdiction which provides for derogation from the
general rule regarding the competence of the courts of the defendant's
domicile (Article 5, paragraph 3 and 4 of Regulation 44/2001 EC) , based
the existence of a particularly close connecting factor between the dispute
and the court of the place where it occurred or may occur on a link which
justifies the attribution of jurisdiction for the sake of the proper
administration of justice and the efficacious conduct of proceedings.
Indeed , in delicts, the judge of the place where the harmful event
occurred or may occur is in general the most appropriate basis, in
particular for reasons of proximity to the difference and ease of gathering
evidence.
What is more, the phrase " place [ s ] where it occurred or may occur
the harmful event occurred" in Article 5, paragraph 3 of the Regulation
44/2001 EC applies to the place where the damage occurred and the place
where the event giving rise to the damage, so the defendant may be sued ,
at the option of the plaintiff , in the courts of the one or the other of
these two sites. These two sites may , from the standpoint of international
jurisdiction , constitute important factors connecting the dispute with the
court seizing jurisdiction , since each of these sites is capable,
depending on circumstances, of being particularly helpful in relation with
the gathering of evidence and conduct of the proceedings.
As a result, it is crucial to note that trial courts may order interim
measures that will have border effect (extraterritorialite), which may be
executed in another Member State. This special jurisdiction as to the
substance is sufficient to establish jurisdiction for injunctive relief
regardless of the place of execution. It is assumed that the existence of
power to the final judgment in a court is a sufficient link (lien
suffisante ou raisonable, minimum contact) , which is required by the rules
of public international law to a court having jurisdiction for the
substance to order interim measures to be executed in another state.
Despite the fact that dogmatically the exact content of that link is not
fully precise in public international law, a central role in the proximity
of the link between the forum of the court alongside the object of the
measure sought have been broadly recognized.