Will Facebook and Instagram be switched off in Europe this summer?

15th July 2022Stormy sea

The waters of the Atlantic are getting even more choppy regarding the transfer of personal data between Europe and the US and the question as to whether Facebook and Instagram will be switched off in Europe this summer has been raised.

Last month, the news that caused the storm was that many European countries declared Google Analytics illegal.  This month’s turbulence is focused on Meta (parent company of Facebook and Instagram).

As reported on Politico.eu on Thursday 7th July, the Irish Data Protection Commission (DPC) stated that it intended to block Meta from sending user data to the United States, which would, in effect switch off both Facebook and Instagram.

The reason for all this ‘banning’ of data transfer between Europe and the US is that in 2020 the European Court of Justice declared that the legal vehicle known as ‘Privacy Shield’ which enabled data to flow freely across the Atlantic, was invalidated because data protection practices in the US are not as robust as in Europe (mainly due to concerns over surveillance by the US authorities).  Read our blog on the demise of Privacy Shield here.

As things currently stand, the DPC has sent a draft of a decision to ban Meta from transferring data across the Atlantic, to their fellow Privacy Regulatory bodies across Europe. They have asked for their input within a month – hence the ‘summer’ timetable.  We await their feedback.

This case highlights the urgent need for a new transatlantic data transfer framework to replace Privacy Shield.  Some say that maybe this ‘shot across the bows’ of Meta (that would have huge consequences and affect the millions of European users), could be a move to try and speed up the negotiations for the new data transfer framework.  We heard back in March that the EU and US had agreed to come to a deal, but the fine print of that deal is yet to be forthcoming.

The balance between protecting people’s data privacy and allowing commercial interests to function safely is a fine line to walk, but the uncertainty is not helping anyone.

Max Schrems, the Privacy campaigner who brought the original case against Facebook in 2013 is not hopeful that this month’s announcement against Meta by the Irish DPC is going to give the outcome he desires.

We expect other DPAs to issue objections, as some major issues are not dealt with in the DPC’s draft. This will lead to another draft and then a vote. In other cases this took another year overall, as the DPC did not implement comments from other DPAs voluntarily and took more than half a year to forward the case for a vote.” Max Schrems, NOYB

He goes on to say that he believes that Facebook will use the Irish legal system to delay any actual ban of data transfers.  Interesting to note is the fact that this Draft Decision by the Irish DPC is not wholly in response to the original complaint made by Schrems in 2013, which remains unanswered.

So, will Facebook and Instagram be switched off in Europe this summer? Schrems certainly doesn’t think so and we would tend to agree.  HOWEVER, watch this space.  Something has got to give.  You know just before a storm when everything feels heavy, the atmosphere is laden with charge and crackles with potential peril? You just know something needs to happen.  That is where we are at.

If you are transferring data between the UK & EU and the US you must have mechanisms in place.  If you are relying on Facebook, Instagram, or any other software that transfers data to the US, you should also have mechanisms in place.  If these are business critical for you, perhaps look at contingency plans.  Just in case the storm does indeed, hit the fan.

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