“Facebook: a privacy defender or a privacy traitor? A glance on recent jurisprudence”

The number of those quitting Facebook is alarmingly augmenting. Users that permanently deactivate their Facebook accounts contend that they “sell their identity online”. According to a recent survey by Statcounter/Eircom for 2013, a 48.3% of Facebook users have strong privacy concerns over the storage of their personal data, whilst another 13.5%

demonstrates a general dissatisfaction over the way Facebook functions. Surprisingly, only 6% of the questioned users confessed their fear of becoming addicted. According to the same poll, more than half of residents in Canada, UK, Ireland, U.S, Australia and New Zealand are active on Facebook. Ireland comes first with 63 per cent, followed by Australia, the UK and the US on 61, 55 and 47 per cent, respectively. It goes without saying that we are living in an era of technology. To survive in this virtual world, one has to relinquish parts of their personal life, daily. Facebook has altered its platform and applications several times since 2004. The last changes regarding the functions of “last active” , “seen” and “location” have been deemed to pose a threat to users’ privacy and intimacy. I do not have a clear view on whether this can be characterised as a direct inhibition to the right to private correspondence as enshrined in article 8 European Convention on Human Rights, but the most certain about it is that Facebook is a living social-networking instrument with millions of profiles, which it stores and –who knows- subsequently shares with other sources. This is evident from the fact that there is an “Account” option to “download one’s Facebook profile”. In Greece, on a national scale, Facebook users are increasingly prioritising social networking over their privacy rights. Virtual friendships subdue intimacy and personal data. One’s personal reputation, integrity or even honor can be greatly harmed, in a single comment or a photo that is uploaded.   In their application before the Court of First Instance in Athens, two Greek attorneys requested for interim measures against “Facebook Ireland Ltd”. They argued that the functions of “last active” and “seen” which respondent has activated in their accounts abridged their right to personality , because it enabled the disclosure of their personal data to third parties, even when offline, on the exact time of service from their cell phones and the exact time instant reading of emails they receive from other users through the service. The jurisdiction of the Greek courts is a procedural requirement of the trial and plaintiff bears the burden of proof invoked; those elements are founded ( as requested ) in Article 22 of Law 2472 / 1997 “Protection of individuals with regard to processing of personal data” which provides criminal penalties for the listed categories to “behavior deemed as criminal , in conjunction with the special jurisdiction “of the court of the place where the harmful event occurred”. That is analogous to the tort under Article 5 Section 3 of the 2007 Lugano Convention , which was ratified both by Ireland and Greece.

The main argument that was put forward in the application and thrived during the hearing process was that the sense of guilt in torts or quasi-delicts includes any claim , which deals with the liability of defendant and not “differences of contract” within the meaning of Article 5 point 1 of the Convention . What is more, the legislative ambit of tort within various types of offenses , such as breach of the general right of personality , extends not only to “the party which caused the damage, but also to any other tortfeasor unlawful act of another” . This provision is indeed pursuant to Article 14 of Law No 2472/1997 (Protection of Individuals with regard to processing of personal data ) , seeking immediate suspension or non-application of the Act raised by the legal subject, whose right to privacy has been infringed. The court ruled that “the application filed and brought for hearing before the court was inadmissible”, founding the inadmissibility of the application on Article 31 of Regulation 44/ 2001 EC of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters . It adjudicated that “both the jurisdiction of the Court and the requirements founded on Article 31 of Regulation 44/2001 lack a legal basis in the present case , since, as stated in the major premise of the decision, “the Court that is competent to carry out the injunction is the Court of Ireland , where respondent resides”. Thus, the Greek Court declared itself incompetent to hear the case. It is self-evident that the national Court did not examine the provisions regarding the jurisdiction of Member States’ Courts in civil and commercial claims under Regulation 44/ 2001 EC of 22 December 2000 on “Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters” .Under Article 23 of the Regulation “if the parties, one of which is domiciled in a Member State , have agreed that a court or the courts of a Member State have jurisdiction to settle any disputes which have arisen or which may arise from a particular legal relationship , that court or those courts shall have jurisdiction . Such jurisdiction shall be exclusive unless the parties have agreed otherwise.” Furthermore, Article 5 states that “a person domiciled in a Member State may, in another Member State, be sued in matters relating to a contract, in the courts for the place of performance of the obligation in question, for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered or in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided”. In the second and third paragraph of the same article, it is stated that “in matters relating to maintenance, in the courts for the place where the maintenance creditor is domiciled or habitually resident or, if the matter is ancillary to proceedings concerning the status of a person, in the court which, according to its own law, has jurisdiction to entertain those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties”, whereas “in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur”. At this point, it would be of uttermost significance to make a reference to settled case-law of the ECJ. The latter has held that the concept of "tort , delict or quasi- delict” in Article 5, paragraph 3 of Regulation No 44/2001 , covers any claim raising a question of liability of the defendant and not a “contract” under Article 5, paragraph

1, point a, of this Regulation. Moreover, a tort or quasi-delict may occur only on condition that it can establish a causal link between the injury and the fact that caused the damage. The rule of special jurisdiction which provides for derogation from the general rule regarding the competence of the courts of the defendant’s domicile (Article 5, paragraph 3 and 4 of Regulation 44/2001 EC) , based the existence of a particularly close connecting factor between the dispute and the court of the place where it occurred or may occur on a link which justifies the attribution of jurisdiction for the sake of the proper administration of justice and the efficacious conduct of proceedings. Indeed , in delicts, the judge of the place where the harmful event occurred or may occur is in general the most appropriate basis, in particular for reasons of proximity to the difference and ease of gathering evidence. What is more, the phrase " place [ s ] where it occurred or may occur the harmful event occurred" in Article 5, paragraph 3 of the Regulation 44/2001 EC applies to the place where the damage occurred and the place where the event giving rise to the damage, so the defendant may be sued , at the option of the plaintiff , in the courts of the one or the other of these two sites. These two sites may , from the standpoint of international jurisdiction , constitute important factors connecting the dispute with the court seizing jurisdiction , since each of these sites is capable, depending on circumstances, of being particularly helpful in relation with the gathering of evidence and conduct of the proceedings. As a result, it is crucial to note that trial courts may order interim measures that will have border effect (extraterritorialite), which may be executed in another Member State. This special jurisdiction as to the substance is sufficient to establish jurisdiction for injunctive relief regardless of the place of execution. It is assumed that the existence of power to the final judgment in a court is a sufficient link (lien suffisante ou raisonable, minimum contact) , which is required by the rules of public international law to a court having jurisdiction for the substance to order interim measures to be executed in another state. Despite the fact that dogmatically the exact content of that link is not fully precise in public international law, a central role in the proximity of the link between the forum of the court alongside the object of the measure sought have been broadly recognized.