Today’s judgment from the Court of Justice of the European Union (CJEU) in Meta’s case (Case C-252/21) offers new insights into the complexities surrounding personalized advertising under the EU General Data Protection Regulation (GDPR). In the decision, in which the CJEU gave the green light to an attempt by the German competition authority (FCO) to rely on the GDPR, the court also explored the lawful bases for data processing under the GDPR, notably for personalized advertising.

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In Robert Bolt’s play “A Man for All Seasons,” the character of Sir Thomas More argues at one point that he would “give the Devil benefit of law, for my own safety’s sake!” Defending the right to due process for a broadly disliked company is similarly not the most popular position, but nonetheless, even Meta deserves the rule of law.

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ICLE Senior Scholar Miko?aj Barczentewicz joined the Mobile Dev Memo podcast to discuss the Irish Data Protection Commission’s recent $1.3 billion levied against Meta over its transmission of EU resident data to the United States, and what the case means for the future of U.S.-EU data flows. The full episode is embedded below.

The €1.2 billion fine that the Irish Data Protection Commission (DPC) against Meta marks a new record for violation of the EU’s General Data Protection Regulation (GDPR), but it is the DPC’s order that the company to shut off its transatlantic flow of user data that will have the most far-reaching consequences for international trade, privacy policy, and the rule of law.

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The €390 million fine that the Irish Data Protection Commission (DPC) levied last week against Meta marks both the latest skirmish in the ongoing regulatory war on the use of data by private firms, as well as a major blow to the ad-driven business model that underlies most online services.

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Under a draft “adequacy” decision unveiled today by the European Commission, data-privacy and security commitments made by the United States in an October executive order signed by President Joe Biden were found to comport with the EU’s General Data Protection Regulation (GDPR). If adopted, the decision would provide a legal basis for flows of personal data between the EU and the United States.

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European Union officials insist that the executive order President Joe Biden signed Oct. 7 to implement a new U.S.-EU data-privacy framework must address European concerns about U.S. agencies’ surveillance practices. Awaited since March, when U.S. and EU officials reached an agreement in principle on a new framework, the order is intended to replace an earlier data-privacy framework that was invalidated in 2020 by the Court of Justice of the European Union (CJEU) in its Schrems II judgment.

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Just three weeks after a draft version of the legislation was unveiled by congressional negotiators, the American Data Privacy and Protection Act (ADPPA) is heading to its first legislative markup, set for tomorrow morning before the U.S. House Energy and Commerce Committee’s Consumer Protection and Commerce Subcommittee.

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Abstract

The right to be forgotten, which began as a part of European law, has found increasing acceptance in state privacy statutes recently enacted in the U.S. Commentators have largely analyzed the right to be forgotten as a clash between the privacy interests of data subjects and the free speech rights of those holding the data. Framing the issues as a clash of individual rights largely ignores the important scholarly literatures exploring how giving data subjects the ability to render certain information unobservable can give rise to systemic effects that can harm society as a whole. This Essay fills this gap by exploring what the right to be forgotten can learn from the literatures exploring the implications of adverse selection, moral hazard, and the emerging policy intervention know as ban the box.