How Max Schrems Scored an Own Goal by Toppling Safe Harbor

[Commentary] Max Schrems may have won a victory in relation to Safe Harbor but he has lost the war as, presumably, he has still consented to Facebook's standard terms, which allow the continued transfer of his data to the US. Unwittingly, Max Schrems may actually have worsened the position for consumers who will now find business-to-consumer (B2C) companies relying more heavily on consumer consent for data transfers to the US.

We may not see pop up boxes explicitly stating, “I consent to Facebook transferring my data to the US and sharing it with the NSA,” but deploying annoying pop-up boxes to gain consent for data transfer is an easy option for B2C companies looking for grounds to transfer data. Once consent has been obtained, the data controller need not consider tiresome issues such as putting in place protocols to protect EU data stored in the US or providing a right of redress for EU individuals in the courts. The consumer has simply traded their EU privacy rights for a product. How is this possibly a better deal for consumers?

[Nicola Regan (McKilligan) is senior partner with the Privacy Partnership in London]