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WhatsApp Ireland allowed to challenge €225m GDPR fine in High Court

WhatsApp claims the fine constitutes the imposition of a criminal sanction

Image: Sasko Lazarov/Photocall Ireland

THE EUROPEAN ARM of WhatsApp has secured permission from a High Court judge to challenge the Data Protection Commission’s decision to fine it €225m.

The fine was handed out by the DPC last August after it held that the messaging service had failed to comply with its obligations under the European Union’s General Data Protection Regulation (GDPR) on data protection in several respects.

WhatsApp Ireland Ltd, which is owned by Facebook, commenced its legal challenge against the decision in September.

The High Court adjourned the matter and said that the application to have the DPC’s decision judicially reviewed should be made in the presence of lawyers for the respondents in the action, namely the Commission, Ireland and the Attorney General.

At the High Court on Monday, Declan McGrath SC for WhatsApp Ireland said that his client’s application for permission for leave to bring the action was not being opposed.

Counsel also said that the respondents were not objecting to his client’s application to amend some technical aspects of its judicial review proceedings.

The matter came before Justice Anthony Barr on Monday, who agreed to grant WhatsApp permission to bring its challenge.

The judge adjourned the matter to a date next month.

In its judicial review proceedings against the DPC, Ireland and the Attorney General, WhatsApp is seeking an order quashing the DPC decision of 20 August last to fine the company.

It also seeks declarations from the court including that certain provisions of the 2018 Data Protection Act are invalid and unconstitutional and are incompatible with the State’s obligations under the European Convention on Human Rights.

Previously, the High Court heard that the DPC, which was established under the 2018 Data Protection Act, commenced by its own volition an inquiry in WhatsApp, which is owned by Facebook, in 2018.

The investigation looked at issues including the service’s processing of data of users and non-users of WhatsApp’s services, and the sharing of personal data between WhatsApp and Facebook companies.

Last August the DPC made certain findings against WhatsApp.

As well as imposing the fine, the DPC ordered WhatsApp to bring its data processing operation into compliance with GDPR requirements.

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However, WhatsApp Ireland Ltd, which is the messaging service’s provider in the European region, claims that the DPC’s decision is unconstitutional and incompatible with the European Convention on Human Rights.

WhatsApp claims that the DPC’s decision, which it made under sections of the 2018 Act, is flawed and should be set aside in its entirety.

The 2018 Act allows the DPC to engage in a form of administration of justice that is not permissible and is contrary to the Irish constitution, it argues.

WhatsApp claims the fine constitutes the imposition of a criminal sanction.

The size of the fine constitutes an interference with WhatsApp’s Constitutional property rights, it also claims.

WhatsApp further alleges that its rights to fair procedures have been breached.

Separately to the judicial review proceedings, WhatsApp has also lodged a statutory appeal before the Irish courts against the DPC’s decision.

About the author:

Aodhan O Faolain

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