File image from 2015 of Max Schrems in a Vienna courthouse. Photo: AFP
An Austrian activist cannot bring a class action against Facebook for privacy breaches, although he is allowed to sue the US social media giant on a personal basis in his home country, the EU's top court ruled Thursday.
Max Schrems had lodged legal cases in an Austrian court on behalf of himself and seven other users in Austria, Germany and India against Facebook's Irish division for various alleged rights violations involving personal data.
Facebook had argued that people can only sue as individual consumers, not as groups.
"Mr Schrems may bring an individual action in Austria against Facebook Ireland," the Luxembourg-based European Court of Justice said in a statement.
"By contrast, as the assignee of other consumers' claims, he cannot benefit from the consumer forum for the purposes of a collective action."
Austria's Supreme Court had referred the matter to the ECJ after Schrems's lawsuit was first thrown out and then restored by the country's courts.
Schrems still hailed it as a victory.
"YAY: @EUCourtPress decides: I can finally sue Facebook in Vienna over Privacy violations!" Schrems said on Twitter.
"However, it limits consumer rights to 'contract partner' only, so no class action. Huge problem for Facebook anyways," he said, adding a winking-smiley-face emoji.
Schrems single-handedly brought down the EU's former "Safe Harbour" data sharing arrangement in 2015 after he sued Facebook in Ireland over the transfer of personal information by Facebook from Europe to the United States.
Ben Roberts-Smith: Top soldier won’t apologise for alleged war crimes
Ben Roberts-Smith is proud of his actions in Afghanistan, the former Australian soldier said in his first comments since a judge ruled claims he committed war crimes were true.
A landmark defamation case this month found Mr Roberts-Smith was responsible for the murders of four Afghans.
The Victoria Cross recipient says he is innocent and will consider an appeal.
“I’m devastated… It’s a terrible outcome and it’s the incorrect outcome,” he said on Wednesday.
Speaking to reporters from Nine as he returned to Australia for the first time since the judgement was delivered, Mr Roberts-Smith also said he would not apologise to those affected by his alleged crimes.
“We haven’t done anything wrong, so we won’t be making any apologies,” he said.
Mr Roberts-Smith sued three Australian newspapers over a series of articles alleging he had carried out unlawful killings and bullied fellow soldiers while deployed in Afghanistan between 2009-2012.
But Federal Court Judge Anthony Besanko threw out the former special forces corporal’s case against The Age, The Sydney Morning Herald, and The Canberra Times, ruling it was “substantially true” that Mr Roberts-Smith had murdered unarmed Afghan prisoners and civilians, and bullied peers.
The 44-year-old, who remains Australia’s most-decorated living soldier, was not present for the civil court ruling, having spent the days leading up to it on the Indonesian resort island of Bali.
Mr Roberts-Smith, who left the defence force in 2013, has not been charged over any of the claims in a criminal court, where there is a higher burden of proof.
None of the evidence presented in the civil defamation case against Mr Roberts-Smith can be used in any criminal proceedings, meaning investigators must gather their own independently.
This week it was confirmed that the Office of the Special Investigator (OSI) – which is responsible for addressing criminal matters related to the Australian Defence Force in Afghanistan – would work alongside Australian Federal Police (AFP) to examine three alleged murders local media say involve the former soldier.
The killings allegedly took place at a compound codenamed Whiskey 108 and in the southern Afghan village of Darwan.
The OSI was set up following a landmark inquiry in 2020, known as the Brereton Inquiry, which found “credible evidence” that Australia’s special forces unlawfully killed 39 people in Afghanistan.
There are currently 40 matters that are being jointly investigated by the OSI and the AFP.
Earlier this year former SAS soldier Oliver Schulz became the first Australian defence force member to ever be charged by police with the war crime of murder.
Why Australia decided to quit its vaping habit
He’s talking about students in his class, teenagers, who can’t stop vaping.
He sees the effect of the candy-flavoured, nicotine-packed e-cigarettes on young minds every day, with children even vaping in class.
“The ones who are deepest into it will just get up out of their seat, or they’ll be fidgeting or nervous. The worst offenders will just walk out because they’re literally in withdrawal.”
Those who are most addicted need nicotine patches or rehabilitation, he says, talking about 13 and 14-year-olds.
is enough and introduced a range of new restrictions. Despite vapes already being illegal for many, under new legislation they will become available by prescription only.
The number of vaping teenagers in Australia has soared in recent years and authorities say it is the “number one behavioural issue” in schools across the country.
And they blame disposable vapes – which some experts say could be more addictive than heroin and cocaine – but for now are available in Australia in every convenience store, next to the chocolate bars at the counter.
For concerned teachers like Chris, their hands have been tied.
“If we suspect they have a vape, all we can really do is tell them to go to the principal’s office.
“At my old school, my head teacher told me he wanted to install vape detector alarms in the toilet, but apparently we weren’t allowed to because that would be an invasion of privacy.”
E-cigarettes have been sold as a safer alternative to tobacco, as they do not produce tar – the primary cause of lung cancer.
Some countries continue to promote them with public health initiatives to help cigarette smokers switch to a less deadly habit.
Last month, the UK government announced plans to hand out free vaping starter kits to one million smokers in England to get smoking rates below 5% by 2030.
But Australia’s government says that evidence that e-cigarettes help smokers quit is insufficient for now. Instead, research shows it may push young vapers into taking up smoking later in life.
Vapes, or e-cigarettes, are lithium battery-powered devices that have cartridges filled with liquids containing nicotine, artificial flavourings, and other chemicals.
The liquid is heated and turned into a vapour and inhaled into the user’s lungs.
Vaping took off from the mid-2000s and there were some 81 million vapers worldwide in 2021, according to the Global State of Tobacco Harm Reduction group.
Fuelling the rise is the mushrooming popularity of flavoured vapes designed to appeal to the young.
These products can contain far higher volumes of nicotine than regular cigarettes, while some devices sold as ‘nicotine-free’ can actually hold large amounts.
The chemical cocktail also contains formaldehyde, and acetaldehyde – which have been linked to lung disease, heart disease, and cancer.
There’s also a suggestion of an increased risk of stroke, respiratory infection, and impaired lung function.
Experts warn not enough is known about the long-term health effects. But some alarming data has already been drawn out.
In 2020, US health authorities identified more than 2,800 cases of e-cigarette or vaping-related lung injury. The Centers for Disease Control and Prevention found 68 deaths attributed to that injury.
In Australia, a major study by leading charity The Cancer Council found more than half of all children who had ever vaped had used an e-cigarette they knew contained nicotine and thought that vaping was a socially acceptable behaviour.
School-age children were being supplied with e-cigarettes through friends or “dealers” inside and outside school, or from convenience stores and tobacconists, the report said.
Teens also reported purchasing vapes through social media, websites and at pop-up vape stores, the Generation Vape project found.
“Whichever way teenagers obtain e-cigarettes, they are all illegal, yet it’s happening under the noses of federal and state authorities”, report author and Cancer Council chair Anita Dessaix said.
“All Australian governments say they’re committed to ensuring e-cigarettes are only accessed by smokers with a prescription trying to quit – yet a crisis in youth e-cigarette use is unfolding in plain view.”
In addition to the government’s move to ban the import of all non-pharmaceutical vaping products – meaning they can now only be bought with a prescription – all single-use disposable vapes will be made illegal.
The volume and concentration of nicotine in e-cigarettes will also be restricted, and both flavours and packaging must be plain and carrying warning labels.
But these new measures are not actually all that drastic, says public health physician Professor Emily Banks from the Australian National University.
“Australia is not an outlier. It is unique to have a prescription-only model, but other places actually ban them completely, and that includes almost all of Latin America, India, Thailand and Japan.”
‘We have been duped’
Health Minister Mark Butler said the new vaping regulations will close the “biggest loophole in Australian healthcare history”.
“Just like they did with smoking… ‘Big Tobacco’ has taken another addictive product, wrapped it in shiny packaging and added sweet flavours to create a new generation of nicotine addicts.”
“We have been duped”, he said.
Medical experts agree. Prof Banks argues that the promotion of e-cigarettes as a “healthier” alternative was a classic “sleight-of-hand” from the tobacco industry.
As such vaping has become “normalised” in Australia, and in the UK too.
“There’s over 17,000 flavours, and the majority of use is not for smoking cessation”, she tells the BBC.
“They’re being heavily marketed towards children and adolescents. People who are smoking and using e-cigarettes – that’s the most common pattern of use, dual use.”
Professor Banks says authorities need to “de-normalise” vaping among teenagers and make vapes much harder to get hold of.
“Kids are interpreting the fact that they can very easily get hold of [vapes] as evidence [they’re safe], and they’re actually saying, ‘well, if they were that unsafe, I wouldn’t be able to buy one at the coffee shop’.
But could stricter controls make it harder for people who do turn to vapes hoping to quit or cut down on tobacco?
“It is important to bear in mind that for some people, e-cigarettes have really helped. But we shouldn’t say ‘this is great for smokers to quit’, says Prof Banks.
“We know from
Australia, from the US, from Europe, that two-thirds to three-quarters of people who quit smoking successfully, do so unaided.”
“You’re trying to bring these [vapes] in saying they’re a great way to quit smoking, but actually we’ve got bubble gum flavoured vapes being used by 13-year-olds in the school toilets. That is not what the community signed up for.”
Australia: Scott Morrison saga casts scrutiny on Queen’s representative
In the past fortnight, Australia has been gripped by revelations that former Australian Prime Minister Scott Morrison secretly appointed himself to several additional ministries.
The move has been labelled a “power grab” by his successor as prime minister, and Mr Morrison has been scolded by many – even his own colleagues.
But the scandal has also dragged Australia’s governor-general into the fray – sparking one of the biggest controversies involving the Queen’s representative in Australia in 50 years.
So does Governor-General David Hurley have questions to answer, or is he just collateral damage?
Governors-general have fulfilled the practical duties as Australia’s head of state since the country’s 1901 federation.
Candidates for the role were initially chosen by the monarch but are now recommended by the Australian government.
The job is largely ceremonial – a governor-general in almost every circumstance must act on the advice of the government of the day. But conventions allow them the right to “encourage” and “warn” politicians.
Key duties include signing bills into law, issuing writs for elections, and swearing in ministers.
Mr Hurley has run into trouble on the latter. At Mr Morrison’s request, he swore the prime minister in as joint minister for health in March 2020, in case the existing minister became incapacitated by Covid.
Over the next 14 months, he also signed off Mr Morrison as an additional minister in the finance, treasury, home affairs and resources portfolios.
Mr Morrison already had ministerial powers, so Mr Hurley was basically just giving him authority over extra departments.
It’s a request the governor-general “would not have any kind of power to override or reject”, constitutional law professor Anne Twomey tells the BBC.
“This wasn’t even a meeting between the prime minister and the governor-general, it was just paperwork.”
But Mr Morrison’s appointments were not publicly announced, disclosed to the parliament, or even communicated to most of the ministers he was job-sharing with.
Australia’s solicitor-general found Mr Morrison’s actions were not illegal but had “fundamentally undermined” responsible government.
But the governor-general had done the right thing, the solicitor-general said in his advice this week.
It would have been “a clear breach” for him to refuse the prime minister, regardless of whether he knew the appointments would be kept secret, Stephen Donaghue said.
Critics push for investigation
Ultimately, Mr Hurley had to sign off on Mr Morrison’s requests, but critics say he could have counselled him against it and he could have publicised it himself.
But representatives for the governor-general say these types of appointments – giving ministers the right to administer other departments – are not unusual.
And it falls to the government of the day to decide if they should be announced to the public. They often opt not to.
Mr Hurley himself announcing the appointments would be unprecedented. He had “no reason to believe that appointments would not be communicated”, his spokesperson said.
Emeritus professor Jenny Hocking finds the suggestion Mr Hurley didn’t know the ministries had been kept secret “ridiculous”.
“The last of these bizarre, duplicated ministry appointments… were made more than a year after the first, so clearly by then the governor-general did know that they weren’t being made public,” she says.
“I don’t agree for a moment that the governor-general has a lot of things on his plate and might not have noticed.”
The historian says it’s one of the biggest controversies surrounding a governor-general since John Kerr caused a constitutional crisis by sacking Prime Minister Gough Whitlam in 1975.
Prof Hocking famously fought for transparency around that matter – waging a lengthy and costly legal battle that culminated in the release of Mr Kerr’s correspondence with the Queen.
And she says the same transparency is needed here.
The Australian public need to know whether Mr Hurley counselled the prime minister against the moves, and why he didn’t disclose them
The government has already announced an inquiry into Mr Morrison’s actions, but she wants it to look at the governor-general and his office too.
“If the inquiry is to find out what happened in order to fix what happened, it would be extremely problematic to leave out a key part of that equation.”
Former Prime Minister Malcolm Turnbull – Mr Morrison’s predecessor – has also voiced support for an inquiry.
“Something has gone seriously wrong at Government House,” he told the Australian Broadcasting Corporation.
“It is the passive compliance along the chain… that did undermine our constitution and our democracy… that troubles me the most. This is how tyranny gets under way.”
PM defends governor-general
Prof Twomey says the criticism of Mr Hurley is unfair – there’s was no “conspiracy” on his part to keep things secret.
“I don’t think it’s reasonable for anyone to expect that he could have guessed that the prime minister was keeping things secret from his own ministers, for example.
“Nobody really thought that was a possibility until about two weeks ago.”
Even if he had taken the unprecedented step to publicise the appointments or to reject Mr Morrison’s request, he’d have been criticised, she says.
“There’d be even more people saying ‘how outrageous!'” she says. “The role of governor-general is awkward because people are going to attack you either way.”
Prime Minister Anthony Albanese has also defended Mr Hurley, saying he was just doing his job.
“I have no intention of undertaking any criticism of [him].”
A role fit for purpose?
Prof Hocking says it’s a timely moment to look at the role of the governor-general more broadly.
She points out it’s possible the Queen may have been informed about Mr Morrison’s extra ministries when Australia’s parliament and people were not.
“It does raise questions about whether this is fit for purpose, as we have for decades been a fully independent nation, but we still have… ‘the relics of colonialism’ alive and well.”
Momentum for a fresh referendum on an Australian republic has been growing and advocates have seized on the controversy.
“The idea that the Queen and her representative can be relied upon to uphold our system of government has been debunked once and for all,” the Australian Republic Movement’s Sandy Biar says.
“It’s time we had an Australian head of state, chosen by Australians and accountable to them to safeguard and uphold Australia’s constitution.”
But Prof Twomey says republicans are “clutching at straws” – under their proposals, the head of state would also have been bound to follow the prime minister’s advice.
“It wouldn’t result in any changes that would have made one iota of difference.”
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