Tuesday , January 26 2021

If Facebook executives can't control it, how is Ireland?

Can Ireland handle Facebook? Right now, Facebook is not even under the complete control of its own executive team.

Last week, the New York Times published a story that the company used a “delay, deny and reject” tactic against critics and lawmakers, hiring a conservative PR agency that worked to discredit Facebook opponents.

Nevertheless, its top two executives — founder, CEO and chairman Mark Zuckerberg and chief operating officer Sheryl Sandberg — say they knew nothing about all this, which, adding to all other scandals, should deeply interfere with Facebook's advice.

Perhaps the real question should be: is there even a possibility of regulating Facebook?

Any answer is still being returned to Ireland, because the best laws to try to do this are European legislation on data protection and antitrust, and in accordance with the General Data Protection Regulation (GDP) Ireland is the EU regulator in the EU.

Therefore, concerns about the adequacy of Ireland for this task are valid, if not new. Since Austrian Max Schrems accepted the case against former Irish data protection commissioner Billy Hawks, challenging the question of whether he correctly investigated whether Facebook processed Schrems data in accordance with European law, some have doubted.

This case, initiated by the Irish High Court, was referred to the European Court, which firmly agreed that the Irish Data Protection Commission did not consider Schrems' actual problems. Not very good optics for Ireland.

But it was a decision against a single decision of the previous commission. Issues arising from this case continue through the network of Irish courts in the second case, instituted by the current Commissioner, and are heard in the Commercial Court regarding the compliance of Facebook and other companies contracts for transatlantic data transmissions.

Legal bewilderment

Facebook asked the Irish Supreme Court to decide whether or not the trial before the European Court in the European Court of Justice in this case (it’s hard to imagine what the court will do besides confirming the proper referral).

However, this referral, in the case where the data protection commissioner against Facebook raises questions about the commission’s approach. I spoke with many lawyers, and no one can understand why the office decided to name not only Facebook as a defendant, but also Maxim Shrem, the applicant.

He also chose the state’s most expensive court, the Commercial Court, on the case. Costs set at millions, despite the fact that many legal experts (still) believe that a referral could be requested in lower courts and did not require the respondent from Shrems. By adopting the approach he had taken, the commission inevitably exposed Schrems, a private citizen, to exaggerate the real risk of excessive costs of the case. It's pointless.

In the end, the commission asked Shrems to be free from expenses. But his approach caused a real frightening effect, introducing the possibility that a claimant could incur enormous costs – insignificant for transnational corporations – just by making a complaint.

Of course, the prosecution of the case on this expensive path, at least, revealed a problem in the EU legislation that needs to be corrected.

However, despite the adoption of the largest and most costly measures to ensure compliance with data in the history of the state, the commission is also accused by some of those who hide unannounced policies to mitigate transnational corporations such as Facebook, because such companies are so important to the Irish economy – opinion publicly declared by the former German data commissioner. By far the worst of all worlds.

I do not believe that this is true, not least because, in accordance with the GDPR, the decision of the national regulator can be challenged and revised by the EU arbitration panel. This creates undesirable regulatory uncertainty for companies that even prefer a solid regulatory environment for those who have “soft” solutions that offer an appeal. In any case, companies come here for a long list of reasons.

Adequate office

I also believe that Data Protection Commissioner Helen Dickson and her office are working to create an office appropriate for his task, with their necessary and deserved, additional staff and a significant increase in public funding (although by 11.7 million Euros, he still drops compared to Facebook's financial reservoir).

But abroad there is built-in skepticism regarding Ireland’s regulatory obligations. I know because I was repeatedly asked by international media and privacy experts.

This does not mean that the position and appointment of her commissioner fall under the auspices of the government, and do not stand independently. Regardless of how neutral an office can be, it’s still vulnerable to the perception that it is calmly directed by the same government that also wants to attract and host transnational corporations like Facebook.

However, the state also said it intends to regulate Facebook as needed. Sigh. Go on, try.

Each additional scandal confirms that Facebook is a win-win data system that is not amenable to effective control – of its leaders, and even more so the random disassembly of national legislators with a sword or the reach of any government regulator.

The truth is that no state or regulator anywhere has yet demonstrated the ability to meaningfully regulate Facebook, although the inability to take on this powerful, globally ingrained hidden company ultimately exposes us to everyone.

As for the evidence, Ireland is unlikely to break this model, but I would be happy to be mistaken.

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