Amicus curiae

1 May 2018

Amicus curiae

As part of FLAC’s approach to litigation; providing legal representation in cases that have strategic value, we represented a US non-profit body, EPIC (Electronic Privacy Information Center) which acted as amicus curiae in a case of significant public and international importance.

The case commenced before the High Court last year resulting in a number of questions concerning EU data privacy law being referred to the Court of Justice of the EU. EPIC and a number of other parties were permitted to join the case as amici curiae, or “friends of the court”. Such amici can provide expertise and perspectives to assist the court in its deliberations.. As an amicus curiae, EPIC provided the High Court with a comprehensive assessment of the strengths and weaknesses of the US legal system as to how it protects the personal data of people resident in the EU, including Ireland, a perspective that might not otherwise have been available to the court.

Who are EPIC?

EPIC is a public interest research centre based in Washington, DC, Established in 1994, EPIC focuses public attention on emerging privacy and civil liberties issues and seeks to protect privacy, freedom of expression, and democratic values in the information age. An independent organisation with no state funding, EPIC routinely files amicus briefs in federal courts, pursues open government cases, defends consumer privacy, organizes conferences and speaks before Congress and judicial organisations about emerging issues. 

About the case

The case, Data Protection Commissioner -v- Facebook Ireland Ltd & Anor, concerns a complaint to the Irish Data Protection Commissioner that an individual’s personal data is being transferred to the US by Facebook in the absence of adequate protections as required by EU law. The complaint was made by Max Schrems, (pictured below) an Austrian privacy campaigner and lawyer.

The case is about the fundamental rights and freedoms of individuals in Europe, in particular the right to privacy and protection of personal data, and raises issues as to the interpretation of the EU Directive on Data Protection and the application of the EU Charter of Fundamental Rights.


Why is FLAC acting for EPIC?

The right to privacy and data protection is now of global significance. This case is particularly significant as it concerns the large scale export of personal data from Europe to the United States, and whether the legal framework is sufficient to ensure adequate protection for the data. The capacity to send personal data around the globe is seen as crucial for many multinational corporations that rely on such data flows for their business, but the export of such data also raises serious concerns if the data is subject to use by foreign governments or enables mass surveillance. 

The proceedings reflects FLAC’s approach to litigation; providing representation in cases that have strategic value and that may affect positive social change, whether to vindicate human rights or to improve access to justice in Ireland. 

FLAC’s concern with access to justice is also reflected at another level in the case, by providing representation to a non-governmental human rights organisation with limited resources seeking to make its expertise available to the Courts as an amicus.

EPIC has been joined to the case as a counter balance to large business and state interests with almost unlimited legal resources. Given EPIC’s track record in advocating for data privacy at domestic and international levels, FLAC, through its law centre, is facilitating an important voice to be heard in the court process. 

This is one of the first times an NGO such as EPIC has been granted leave to appear as an amicus curiae in an Irish court. Significantly, EPIC, will now receive the opportunity to make a written and oral submission to the Court of Justice of the EU when that court considers the scope of EU data protection laws when applied to international flows of personal data.

That decision will be a landmark one in EU law and data protection.

More about amicus curiae

Amicus curiae translates as ‘friend of the court’. The amicus is not a party to the case. Its role is to provide expertise to the court as an impartial third party and assist the Court in arriving at its decision. There has been limited use of the amicus mechanism in the Irish courts, although the practice is growing. This case is notable in that the appointment of an NGO as amicus is rare, and rarer still is the appointment of a non-Irish amicus. 

While amicus curiae have not been regularly used in Ireland, it was used recently regarding the issue of the right of those in direct provision to work.