The Irish arm of technology giant Meta has brought a High Court challenge against a proposed immediate ban against its Facebook and Instagram platforms from processing personal data for use in behavioural advertising.
The action comes after Meta Platforms Ireland Ltd was served last week with an enforcement notice by the Data Protection Commission (DPC) stating it had seven days to cease processing data for advertising to users.
Any failure to comply with the enforcement notice is a criminal offence and could also see the company fined, Mr Justice Cian Ferriter was told on Monday.
The applicant, formerly known as Facebook Ireland, is a subsidiary of the US owner of Facebook, Instagram, and WhatsApp. It is the controller and service provider for Meta’s platforms in the European region.
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The proposed ban would affect how the platforms do business across Europe.
Represented by Declan McGrath SC, Emily Egan McGrath SC and Shelley Horan, Meta has asked the court to quash the enforcement order on grounds including that it is vague and unclear in terms of what the company has to do to be compliant with its obligations under the General Data Protection Regulation (GDPR).
It also claims the decision to issue the notice amounts to a breach of Meta’s legitimate expectation of a fair hearing and procedures.
Meta further claims the decision renders certain sections of the 2018 Data Protection Act, the legislation which established the DPC, unconstitutional.
Ireland and the Attorney General have been included as respondents to Meta’s proceedings.
It claims the proposed ban would prevent Facebook and Instagram from using users’ personal information to inform and provide details to advertisers.
The DPC issued the enforcement notice after the European Data Protection Board (EDPB) — the EU’s data protection authority that oversees the application of the GDPR and other data protection rules — issued a binding decision requiring the Irish data protection body to act against Meta.
Meta says Facebook and Instagram’s processing of data for behavioural advertising had been the subject of investigation by the DPC into alleged data protection breaches.
Meta denied the breaches and claimed it was allowed under Article 6 of the GDPR to process the data in question on the legal grounds of “contractual necessity” and “legitimate interest”.
Those arguments were ultimately not accepted when the issue was referred to the EDPB.
Counsel said the findings against it are already the subject of separate legal challenges before the domestic and European courts.
Meta also claims it was seeking to have its consent-based solution to the issues assessed by the DPC, which, if accepted, would ensure its compliance with its GDPR obligations.
Earlier this month it was made aware of the EDPB‘s binding decision on the DPC.
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On November 14th last, it received the enforcement notice which was issued by the DPC four days earlier.
Mr McGrath said the main problem from his client’s point of view was the prospect of a criminal sanction for any non-compliance.
Counsel said that given the vague nature of the enforcement order Meta had asked the DPC to clarify what it needed to do so it would not be in breach of the order.
No response was given to Meta, counsel said, adding that the order was due to come into effect sometime on Tuesday (November 21st).
His client had no option other than to bring proceedings against the enforcement order.
After considering Meta’s submissions Mr Justice Ferriter, on an ex parte basis, granted Meta permission to bring its judicial review action.
The judge said he was also prepared to grant a temporary stay on the enforcement notice from coming into effect.
The judge said that given the serious criminal consequences that could arise, and the relatively short time that Meta has been given to comply with the notice, the judge said that the balance of justice favoured the granting of a short interim stay.
The matter will return before the court later this week.
The judge said he was giving all sides liberty to return before the court before the matter is next should the need arise.
