Facebook fights for the privacy of its employees. It has protected it from the European Commission

Two actions similar in content (here and here) have been brought before the Luxembourg General Court. Facebook seeks by these actions the annulment of a decision by which the European Commission (the “Commission”) requested, under a risk of a fine of EUR 8 million per day, the provision of documents which might be relevant for the investigation of the possible abuse of a dominant position in the area of user data management of management of the popular social network.

In its actions, Facebook claims, inter alia, that the Commission also requested it to provide documents which were wholly irrelevant to the investigation. These were also to include documents concerning the personal matters of its employees. Facebook considers that the decision itself ordering it to produce the documents in question is disproportionate and contrary to the fundamental right to privacy.

We will have to wait a few more months for the final verdicts of the General Court. Last week, however, the “first swallows” arrived from Luxembourg in the form of two almost identical interim measures (here and here). This is surprising news. The EU courts order a suspension of the enforcement of an administrative decision very exceptionally. Acts of the European Union institutions enjoy a presumption of legality and, therefore, actions brought before the General Court do not have suspensory effect.

Interim measures are issued only in situations where the action prima facie is not unfounded, i.e. if it raises a major legal or factual disagreement the solution to which is not immediately obvious. In the Facebook case, the General Court found this principle to be satisfied on two levels.

First, the General Court recalled that the Commission should request from the undertakings under investigation only such documents that are necessary to fulfil the objectives of its investigation. In this case, however, the Commission requested Facebook to also provide documents searched on the basis of very general keywords such as advantage, grow, quality, for free and not good for us. Not surprisingly, tens of thousands of documents were searched, many of which had nothing to do with the Commission’s investigation. However, there was no mechanism on the basis of which irrelevant documents were excluded from the Commission’s examination and therefore did not have to be provided to the Commission for further investigation.

Second, the General Court noted that everyone (yes, also Facebook’s employees) has the right to respect for his or her private and family life. This fundamental right may only be limited in compliance with the law, where necessary and in proportion to the objective pursued. However, on the basis of the contested decision, the Commission also gained access to communication concerning the health condition of individual employees, their family relationships, sexual orientation and religion. Even the autopsy report of a family member of one of the employees was found in the documents seized by the Commission. The General Court also emphasized that the European Union itself is committed to the protection of similar data, for example through the GDPR.

Both legal issues, which Facebook contends in the application, were considered as not unfounded by the General Court. The contested decision can therefore be expected to be thoroughly analysed by the Commission, at least to that extent.

The General Court also considered the urgency of those legal issues, namely whether they should be temporarily provided for before it issues a judgment on the case. It concluded that the case could not be postponed with respect to the sensitive personal data of Facebook’s employees. Indeed, they may incur harm by the Commission’s officials becoming aware of their most intimate privacy. There is no way how to remedy such harm, as the memory cannot be easily deleted.

In the light of those considerations, the General Court has, for the time being, prohibited the Commission from handling documents which contain sensitive personal data of Facebook’s employees. The selection of these documents will be directly at the discretion of Facebook, which will select them from the file and store them in a virtual data room with limited access. The documents will then be examined in the presence of a few the Commission’s staff members and Facebook’s lawyers, with only documents that do not concern the privacy of individual employees being returned to the file.

Without the issuance of an interim measure anticipating a judgment on the merits, it can be a positive signal for the applicant that its objections are aimed at the right target. It will therefore be very interesting to see how the General Court will eventually deal with the entire case. We believe that the Commission’s request for documents and information was really excessive in this case. Under the contested decision, the Commission obtained hundreds of thousands of documents, many of which lacked any relation to the alleged anti-competitive conduct.

By a preliminary measure, the impact on individual Facebook employees was at least partially remedied. However, the question remains as to how the General Court will approach the question of the legality of the request for the production of documents, which, although they relate to Facebook’s business activities, are in no way related to the practice under investigation. There will also be a large number of such documents in the file. The interim measure does not apply to those documents, in particular because Facebook is a legal person and the General Court considered it sufficient to protect its procedural rights in the main proceedings.

The judgment may also have an impact on investigations conducted by national competition authorities. Although the Czech Competition Authority (at least for the time being) does not request the provision of all documents and information selected on the basis of keywords, it makes extensive use of them in on-site inspections. Thus, if the General Court were to state that the Commission used disproportionate general keywords and also seized documents which were manifestly unrelated to the investigation (which it does not now anticipate), its conclusions could also be transposed to the national level. Then perhaps we would get rid of keywords such as agreement or deal, the use of which is more suitable for whaling expeditions than for precisely targeted on-site inspections.

But, we are getting ahead of ourselves.