Social Networks: When Are You a Consumer in the EU?

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Consumer today, gone tomorrow: your position on social media networks can change with time.

In Case C-498/16 Maximilian Schrems v Facebook Ireland Limited (nyr, 25 January 2018), the Court of Justice of the European Union (CJEU) had to decide when an individual who uses a social network for different purposes qualifies as a consumer.

Schrems is a privacy activist, particularly against Facebook. He brought an action before the Austrian courts against Facebook alleging various
breaches of privacy laws.

The issue arose whether (i) Schrems could be considered a 'consumer'; and (ii) whether he could bring an action on the basis of the Brussels I Regulation on behalf of consumers located in different Member States, who had assigned their claims to him, in Austria.

With regards to the first point, it resulted that Schrems initially used Facebook for personal purposes, but that subsequently he opened a page in order to publicise his privacy activism, on which he also publicised lectures and books. The CJEU held that, within the context of a digital social network which is used over a long period of time, in order to assess whether an individual is a consumer it is necessary to take into account subsequent changes in the use which is made of those services. That said, neither the expertise which the individual may acquire in the field covered by those services nor his assurances given for the purposes of representing the rights and interests of the users of those services can deprive him of the status of a 'consumer'. As a result, the CJEU still considered Schrems to be a consumer.

On the second point, the CJEU held that Article 16(1) of Brussels I must be interpreted as meaning that it does not apply to the proceedings brought by a consumer for the purpose of asserting, in the courts of the place where he is domiciled, not only his own claims, but also claims assigned by other consumers domiciled in the same Member State, in other Member States or in non-member countries. In other words, a consumer cannot bring a claim in the Member State where he is domiciled on behalf of other consumers who are not domiciled in the same Member State. This raises some questions on the viability of class actions across Member State borders.

AUTHOR: Dr. Annalies Muscat

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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