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The Data transfer clauses have been used by Facebook, are legal, says european court adviser, and risks

LUXEMBOURG (Reuters) – Standard contracts to be used by Facebook and many other companies to send users’ personal data to third countries, is valid as a legal advisor to the EU, said on Thursday, but he did make room for such transfers to be blocked, and the EU data protection standards will not be met in the various states.

FILE PHOTO: Facebook logo can be seen on a screen, this image on 2 December 2019 at the latest. (REUTERS photo/Johanna Geron/Image/File Photo

Facebook itself is in the spotlight after the Austrian privacy campaigner Max Schrems will be challenged to make use of the standard contractual clauses, on the grounds that they do not have sufficient data protection is guaranteed.

Schrems had been on the republic of Ireland, where Facebook has its European headquarters and to take action against the company because it will be subject to u.s. monitoring laws that he considers would be likely to threaten Europeans’ rights.

Schrems, successfully fought against the EU’s previous ‘Safe harbor’ privacy rules at the end of 2015.

Henry Saugmandsgaard Øe, the attorney-general (AG) of the Court of Justice of the European Union (CJEU), has said that the provisions are used by many companies in support of activities such as manufacturing, services, cloud, infrastructure, data, hosting, finance and the legal department.

But, he added, data protection authorities have to prohibit any such transfer of information when there is a conflict between the obligations in relation to the standard terms and those imposed on them by the legislation of the third country of destination.

Schrems also said that he was “generally pleased” with the legal advice.

“Everyone will still be able to have all of the necessary information flows with the united states, including the transmission of e-mail or the booking of a hotel in the US,” he said.

“Some EU companies will not be able to make use of specific U.S. suppliers for outsourcing, since OUR control law requires these companies to provide information on the National Security Agency (NSA).”

It really is in the United States, in order to ensure baseline privacy protections to foreign citizens. Otherwise, no one will trust AMERICAN companies with their data.”

The opinion calls into question the adequacy of U.S. safeguards, said Caitlin Fennessy, a research director at the International Association of Privacy Professionals.

“All of this suggests a short-term basis, the diplomatic solution will be of critical importance,” she said.

Facebook said in a statement: “We are grateful to the Solicitor-General for advice on these complex issues. By default, the Contractual Provisions provide important safeguards to ensure that the bulk of the data will be protected once transferred to a foreign country. SCCs have been designed and approved by the European Commission and the involvement of thousands of Europeans around the world to do business.”

The court has to follow the advisor’s opinion on the terms, ” says Patrick Van Eecke, the worldwide chairman of the law firm of DLA Piper, and the protection of personal data in the field.

FILE PHOTO: Austrian lawyer and privacy activist Max Schrems smiles during a Reuters interview in Vienna, Austria, on May 22, 2018. REUTERS/Heinz-Peter Bader/File Photo

“In an open, global economy is highly dependent on the data that flows across the national borders of the countries or regions, and the creation of obstacles to the prohibition on the international transfer of personal data, it is not good for business and good for the people,” he said.

The irish Data Protection Commission, Facebook’s lead regulator in the EU, has been taken up with the same conclusion as the advocate general noted that it “illustrates one of the complexities associated with the issues that can arise when the EU’s data protection laws interact with the laws of other countries, to the laws of the United States of america.

In the case of the C-311/18 Facebook Ireland and Schrems.

Reporting by Foo Yun Chee, additional reporting by Kirsti Knolle in Vienna and Graham Fahy in Dublin; editing by Kirsten Donovan, Jason Neely and Alexandra Hudson

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