Chat control on Facebook
GFF has filed a lawsuit against Meta due to the company’s automated scanning of users’ messages on Facebook Messenger. In doing so, Meta not only violates the right to privacy, but also the fundamental right to control one’s own data.
Much of our digital communication now takes place via messengers on social media platforms. We use the chat feature to send birthday greetings and holiday photos. However, people also use messenger services to share particularly sensitive and personal information with others. This also applies to our plaintiff Marcel Schneider (name changed).
In the past, Schneider has experienced abuse. But he cannot use Facebook Messenger to talk about it, even if that is the easiest and sometimes the only way for him to do so. Otherwise, he runs the risk of his exchange being revealed to third parties. Examples like this show why confidential communication is essential.
European Parliament struggles over chat control
Currently, the European Parliament is debating the proposal for so-called mandatory chat control. This regulation will – among many other highly problematic provisions – oblige platforms to scan private messages on messenger services without any reason and across the board in order to combat sexual violence against children. Experts, activists, and NGOs, including GFF, warn of the consequences of this kind of indiscriminate mass surveillance and consider its value for the protection of children to be very low.
However, tech companies are already scanning private communications, relying on a derogation regulation. This regulation, too, is aimed at stopping Child Sexual Abuse Material (“CSAM”). Social media platforms such as Facebook rely on precisely this regulation in order to legitimize their indiscriminate mass surveillance.
Derogation as a basis for mass surveillance?
The e-Privacy Directive and the European Electronic Communications Code initially banned providers of private communications from scanning their users’ communications for CSAM. Following increased criticism, including from police authorities, the EU enacted a three-year derogation.
Currently, there exists no obligation to search messages exchanged on messenger services. In fact, however, comprehensive monitoring of users’ private communications is already taking place.
Charter of Fundamental Rights is being violated
With our lawsuit, we aim for the legality of this derogation – and hence also of the proposed chat control – to be reviewed by courts. In GFF’s opinion, the rule currently applied is incompatible with the Charter of Fundamental Rights. In particular, the right to respect for private and family life (Article 7 of the Charter), the right to protection of personal data (Article 8 of the Charter), and the freedom to receive and impart information without interference by public authorities (Article 11 of the Charter) are at risk.
Former judge of the European Court of Justice (ECJ), Prof. Ninon Colneric, comes to a similar conclusion. In her expert opinion, she argues that the present options for chat control already violate the fundamental rights under the Charter. In doing so, she relies extensively on the ECJ’s case law on data retention.
Since the effect of the new regulation extends far beyond the existing scanning practice – as, inter alia, encrypted communications will be scanned as well – it constitutes an even more egregious violation of the Charter of Fundamental Rights.
Our lawsuit aims to oblige Meta to stop scanning the plaintiff’s communications without cause. Beyond this, GFF is seeking a ruling that generally establishes the unlawfulness of indiscriminate chat controls. The lawsuit is being supported by our cooperating lawyers Dr. David Albrecht and Lisa Engelbrecht.
