Tweets of the Week

In 2018, the Democratic National Committee filed a lawsuit in the U.S. District Court, Southern District of New York, against the Russian Federation et al. Donald Trump Jr is one of the defendants. There is a court hearing today - Trump Snr trying shut lawsuit down #USPolitics pic.twitter.com/hT2ioGEhPS

— no_filter_Yamba (@no_filter_Yamba) July 19, 2019

Good morning @ScottMorrisonMP

While you're off to Hillsong to clap your hands & speak in tongues, just wanted to let you know that my 90yo Mum who was once a milliner is busy today making this for you in Blue.

Let me know if you'd prefer black text.

& you're welcome. #auspol pic.twitter.com/hG4MVQJ5H7

— 💧🌏🏳️‍🌈Jenny Frecklington-Jones; #NotMyPM (@Triplejay58) July 20, 2019

exciting to see major media have worked out that #RaiseTheRate would be an actual stimulus measure. Looks like we’re just waiting on how government can work it into their economic narrative and it might just happen. Priorities. #Insiders

— Ingrid M (@iMusing) July 20, 2019

And now for some good news......

David Morris, CEO of EDO NSW: Our argument was based on science, economics and – we argued - the proper application of the law. The climate contention as a ground for refusing this mine was innovative; the first time climate change has been addressed this way in an Australian court using the concept of a carbon budget as its basis.

Like so many great ideas – its strength was its simplicity. While there was lots of necessary evidence and discussion about the carbon budget, geopolitical climate policy and Australia’s legal framework for climate change, ultimately our argument was simple:  if you accept the science, then the local legal framework compels you to refuse the mine because it’s clearly not in the public interest to increase emissions.

As Professor Steffen said “it’s one atmosphere, it’s one climate system, it’s one planet - and so we need to start thinking more carefully about the net effect of wherever coal is burnt, or oil or gas… The project’s contribution to cumulative climate change impacts means that its approval would be inequitable for current and future generations”. [EDO NSW, media release, 8 February 2019]

The Sydney Morning Herald, 8 February 2019:

When Planning Minister Anthony Roberts intervened a year ago to give a coal miner the unusual right to challenge its project's refusal in court, neither would have countenanced Friday's outcome.

Instead of settling the future of Gloucester Resources' controversial Rocky Hill coal mine near Gloucester, the NSW Land and Environment Court just cast a cloud over coal mining in general.

The miner had thought it was merely challenging the Department of Planning's rejection of the mine's impact on visual amenity in the bucolic valley around Gloucester.

Instead, the Environmental Defenders Office, acting for residents opposed to the mine, grabbed the opportunity to join the appeal.

In what EDO chief David Morris describes as a "delicious irony", the court got to hear about the project's detrimental impact on climate change and the town's social fabric - despite Gloucester Resources arguing such intervention would be a "sideshow and a distraction".

Future generations will wonder why it took so long for any court in the land to hear such evidence when considering a coal mine project.

But Justice Brian Preston didn't just allow the EDO to provide expert evidence of the role greenhouse gas emissions play in driving climate change. He also accepted it as part of the critical reasons to reject the mine. "The decision forms part of what is a growing trend around the world on using litigation to fight climate change," Martijn Wilder, a prominent climate lawyer from Baker & McKenzie, says. "While early on some of this litigation was not successful, increasingly it is."

Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7, 8 February 2019 judgment here.

Wangan and Jagalingou people's fight against foreign mining giant Adani continues into 2019

ABC News, 25 January 2019:

The United Nations has asked the Australian Government to consider suspending the Adani project in central Queensland until it gains the support of a group of traditional owners who are fighting the miner in court.

A UN committee raised concerns that the Queensland coal project may violate Indigenous rights under an international convention against racial discrimination if it goes ahead, giving Australia until April to formally respond.

Meanwhile, a public interest legal fund backed by former corruption fighter Tony Fitzgerald has stepped in with financial backing for a federal court challenge to Adani by its opponents within the Wangan and Jagalingou (W&J) people.

The Grata Fund, which boasts the former federal court judge as a patron, agreed to pay a court-ordered $50,000 bond so W&J representatives can appeal a court ruling upholding a contentious land access deal secured by the miner.

The UN Committee on the Elimination of Racial Discrimination last month wrote to Australia's UN ambassador to raise concerns that consultation on Adani's Indigenous Land Use Agreement (ILUA) "might not have been conducted in good faith".

These allegations "notably" included that members of the W&J native title claim group were excluded, and the committee was concerned the project "does not enjoy free, prior and informed consent of all (W&J) representatives"….

UN committee chair Noureddine Amir in a letter told Australia's UN ambassador Sally Mansfield the committee was concerned ILUAs could lead to the "extinction of Indigenous peoples' land titles" in Australia.

Mr Amir said it was "particularly concerned" by 2017 changes to native title laws to recognise ILUAs not signed by all native title claimants, "which appears to be in contradiction" with an earlier landmark Federal Court ruling.

"Accordingly, the committee is concerned that, if the above allegations are corroborated, the realisation of the Carmichael Coal Mine and Rail Project would infringe the rights of the Wangan and Jagalingou people, rights that are protected under the International Convention on the Elimination of All Forms of Racial Discrimination," Mr Amir said.

The committee gave Australia until April 8 to outline steps taken to ensure proper consent "in accordance with Indigenous peoples' own decision-making mechanisms".

It asked Australia to "consider suspending" the Adani project until consent was given by "all Indigenous peoples, including the Wangan and Jagalingou family council".

It invited Australia to seek expert advice from the UN experts on Indigenous rights and to "facilitate dialogue" between the W&J and Adani.

Mark Lathan’s defence of defamation dismissed

Excerpts from Federal Court of Australia, Faruqi v Latham [2018] FCA 1328, Defamation:

THE COURT ORDERS THAT: 

1.  The respondent’s defence dated 23 November 2017 be struck out.

2.  The applicant’s interlocutory application filed 14 December 2017 be otherwise dismissed.

3.  The respondent’s interlocutory application filed 11 December 2017 be dismissed.

4.  The respondent pay the applicant’s costs of and associated with the interlocutory applications referred to in orders 2 and 3.

5.  The parties jointly arrange for the matter to be listed for a case management hearing on the earliest date suitable to the parties and the Court after 28 September 2018……

WIGNEY J:

1. What does the martyrdom of Christians in the Roman Empire between the reign of the Emperor Nero Claudius Caesar Augustus Germanicus and Emperor Flavius Valerius Aurelius Constantinus Augustus have to do with a defamation action commenced in Australia in 2017?  How could the persecution of ethnoreligious Huguenots in the French Kingdom during the French Wars of Religion of the Sixteenth Century be said to rationally affect the assessment of the probability of a fact in issue in a modern-day defamation action in which the defamatory imputations are said to be that the applicant knowingly assists terrorist fanatics who want to kill innocent people in Australia, or condones the murder of innocent people by Islamic terrorists, or encourages and facilitates terrorism‽  Could the fact of the segregation and ill-treatment of ethnic Negro people under the doctrine of Apartheid in South Africa between 1948 and 1991 reasonably be said to be relevant to the defences of justification, contextual truth, qualified privilege, honest opinion and fair comment pleaded by the respondent in that defamation action?

2. These and other equally beguiling questions are raised by the interlocutory applications filed by the parties in this matter.

Read the full judgment at https://jade.io/article/602963?at.hl=faruqi+latham

Five to face Brisbane court over serious breaches of environmental law

It is thought that up to 320 square kilometres of agricultural land around Chinchilla may be at risk from contamination by chemicals and gases, due to alleged mismanagement of underground burning by Linc Energy Limited.

In November  2016 former Linc Energy chief executive Peter Bond along with four former staff members – Donald Schofield (managing director), Stephen Dumble (chief operations officer), Jacobus Terblanche (chief operations manager) and Darryl Rattai (former general manager) – were summonsed for breaching environmental law.

However their matters were adjoined until after The Queen v. Linc Energy Ltd was concluded and are all five are now due to face a committal hearing in the Brisbane Magistrates Court this month.

BRIEF BACKGROUND

ABC News, 11 May 2018:

A gas company has been fined a record $4.5 million for causing serious environmental harm at its underground coal gasification plant on Queensland's western Darling Downs.

Linc Energy was found guilty by a District Court jury in Brisbane last month after a 10-week trial.

The company was charged with five counts of wilfully and unlawfully causing serious environmental harm between 2007 and 2013 at Hopeland near Chinchilla.

Linc Energy mismanaged the underground burning of coal seams, which caused rock to fracture and allowed the escape of toxic gases which contaminated the air, soil and water on site.

The court heard the highest fine imposed upon a company so far in Queensland for similar offending was $500,000.

Linc Energy did not defend itself during the trial because it is now in liquidation.

Five executive directors have been charged with failing to ensure compliance of the company and are due to face a committal hearing in the Brisbane Magistrates Court in July.

Prosecutor Ralph Devlin told the court the company knew it was causing damage but pressed ahead with operations, and described its offending as "serious".

"The defendant acted in devious and cavalier way … its motivation was commercial gain," he said.

"It pursued commercial interests over environmental safeguards."

The court heard there would be monitoring and remediation of the site for decades to come, and it will take potentially between 10 to 20 years for groundwater to recover.

The Sydney Morning Herald, 10 April 2018:

“It was an undefended case, the liquidators chose not to defend it, so, of course, there is going to be a guilty verdict,’’ he [Peter Bond] told The Australian of Monday's court ruling.

“It means nothing; there was no one in court to call bullshit and there was a lot of bullshit to that case."

Excerpt from THE QUEEN v. LINC ENERGY LTD (IN LIQUIDATION), 11 May 2018, Sentence:

HIS HONOUR: On the 9th of April 2018, Linc Energy Limited in liquidation was found guilty by a jury of five counts of wilfully and unlawfully causing serious environmental harm. That followed a 10-week trial, and the offence is contained in the Environmental Protection Act. There was no appearance by the defendant in in  liquidation pursuant to an order of the Supreme Court under the Corporations Law. The liquidators did not have to appear. That caused particular difficulties during the trial and also has an impact on sentence proceedings as I have not been assisted by any submissions on behalf of the defendant in relation to penalty.

As the defendant is a corporation, the only penalties that are open are financial: either a fine or compensation. The provision in relation to the imposition of fines is covered by sections 45 to 48 of the Penalties and Sentences Act. The first aspect of that is that, pursuant to section 48(1)(a) and (b) and subsection (2) of that Penalties and Sentences Act, the Court must take into account:

 …so far as is practicable, the financial circumstances of the offender and the nature of the burden the imposition of the fine would have on the offender.

Section 48, subsection (2) provides the Court may fine if it is unable to find out the  matters referred to in subsection (1). There is no information before me as to the circumstances of the liquidation of the corporation. I am unaware of any of its assets or liabilities, or whether it will have the capacity to pay fines. As to the utility of imposing a financial penalty on a corporation in liquidation, there are no restrictions in law as to that. Indeed, the cases referred to me demonstrate it is appropriate, 25 whether as a need for denunciation or general deterrence of specific criminal conduct…..

In relation to counts 1 to 3, a combination of section 437 of the Environmental Protection Act 1994 and 45 section 181B of the Penalties and Sentences Act 1992 provides a maximum penalty of five times the 4165 penalty units, that is, a total of 1,561,875 thousand dollars for each of the offences covered in counts 1 to 3……

In my view, the defendant put its commercial interests well above its duty to conduct its processes in a way that safeguarded the environment. This is shown by its continued efforts to be seen as a successful Gas to Liquid producer on a commercial scale, where it operated gasifiers clearly above hydrostatic pressure to produce suitable gas for the GTL process, well knowing that contaminants were escaping widely and that damage to the land structure was occurring. As I have noted during the course of argument, there are varying degrees of wilfulness, which is an element of each offence.

The Prosecution have submitted that the appropriate way to approach the quantum is 45 by assessing the maximum and then reaching an appropriate proportion to address each offence. In terms of the section I earlier quoted in relation to the quantum of  fines, it seems to me the damage occasioned by each of these offences is significant and needs to be taken into account in the calculation of a quantum. In relation to each of counts 1 to 3, I accept the Prosecution’s submission that it is appropriate to impose 50 per cent of the maximum in relation to those.

In relation to each of counts 4 and 5, as I have noted, there are aggravating features. The defendant was well aware of the problems with the site and proceeded in disregard of its own experts. They had clearly advised the site was unsuitable because of the earlier gasifier operations; however, the defendant persisted simply 10 on a commercial basis.

In relation to the final count, the defendant purposely hid the issue of groundwater contamination from the regulator. I accept the Prosecution’s submission that fines in relation to each of those later offences should be at 75 per cent of the maximum.

I intend to reduce each of those fines to recognise the totality issues that I have spoken about, including the interplay between each offence and the damage that has actually been occasioned. On each of counts 1, 2 and 3, I fine the defendant the sum of $700,000. On each of counts 4 and 5, I fine the defendant the sum of $1,200,000. Convictions are recorded. The Prosecution does not seek its costs in relation to this Prosecution.

Liberals continue to behave badly in 2018 – Part Six, Cash subpoena for 1 August

The Guardian: Michaelia Cash giving evidence before Senate educaion & employment committee, Parlview video, Feb 2018

The Age, 30 May 2018:

The Federal Court has ordered embattled Jobs Minister Michaelia Cash to give evidence in the court case over last year's raids on the headquarters of the Australian Workers Union.

Court documents seen by Fairfax Media show a subpoena has been issued for Senator Cash to attend court on August 1.

The minister has been under pressure over her role in a federal police raid conducted on AWU offices in Melbourne in October, details of which were leaked to the media in advance.

Senator Cash's former staffer David de Garis - who has also been ordered to give evidence - took the blame for tipping off journalists and subsequently resigned.

Senator Cash has said she was unaware of the tip-offs. She was due to appear at a Senate estimates hearing on Wednesday but sent the assistant minister Zed Seselja instead….

She previously failed in an attempt to stop subpoenas for communications between her office and the ROC about the raids….

Mr Turnbull has so far stood by his minister.

Only a handful of NSW landowners to face court over Murray-Darling Basin water theft allegations?

ABC News, 8 March 2018:

The NSW Government will prosecute several people over alleged water theft on the Barwon-Darling, eight months after Four Corners investigated the issue.

WaterNSW has named the people it is taking to the Land and Environment Court over alleged breaches of water management rules.

They are prominent irrigator Peter Harris and his wife Jane Harris, who own a major cotton farm near Brewarrina in the state's north-west and were named in the Four Corners story.

The couple have been accused of taking water when the flow conditions did not permit it, and breaching licence and approval conditions.

Three members of another prominent family are also facing charges: cotton grower Anthony Barlow from Mungindi near Moree and Frederick and Margaret Barlow.

The Barlows have been accused of pumping during an embargo and pumping while metering equipment was not working.

WaterNSW gave false figures: Ombudsman

WaterNSW announced the prosecutions an hour before the NSW Ombudsman released a scathing report saying the agency had given the Government incorrect figures on its enforcement actions.

The state's ombudsman, Michael Barnes, found WaterNSW gave incorrect figures when it provided statistics that showed there had been a significant increase in enforcements between July 2016 and November 2017.

"The information provided to us indicated that the updated statistical information from WaterNSW that we'd published was significantly incorrect," he said.

"There had, in fact, been no referrals for prosecutions and no penalty infringement notices issued in the relevant period."

Mr Barnes said he initiated a separate investigation after his office received complaints about the figures, and he found WaterNSW had inflated the statistics.

"As part of our investigation, we confirmed with Revenue NSW that no penalty infringement notices were issued by WaterNSW in the relevant period," he said.

The ombudsman said he raised the issue with WaterNSW, which has admitted to the mistake and apologised.

Mr Barnes also said he believed the error was unintentional.

The agency's CEO, David Harris, said staff have now manually reviewed all actions taken.

"Some of the detail WaterNSW provided was incorrect and, although it was revised, it is not acceptable and we are acting to ensure it does not happen again," he said……

NSW Ombudsman, Correcting the record: Investigation into water compliance and enforcement 2007-17: A special report to Parliament under sections 26 and 31 of the Ombudsman Act 1974, 8 March 2018, Amended enforcement outcome statistics:

Employer groups put pressure on Turnbull Government to stifle union mergers

In 2017 members of the Construction, Forestry, Mining and Energy Union (CFMEU), The Maritime Union of Australia (MUA) and the Textile, Clothing and Footwear Union of Australia (TCFUA) considered a proposal to amalgamate into one union or alternatively to amalgamate only the CFMEU and the MUA.

The ballot was conducted by the Australian Electoral Commission (AEC) and results declared on 28 November 2017. There appears to have been no irregularities affecting the ballot outcome.

The Fair Work Commission handed down a decision giving effect to the CFMEU and MUA amalgamation on 27 March 2018.

Employer groups Australian Mines and Metals Association (AMMA) and Master Builders Australia (MBA) are now appealing the Commission’s decision.

The Australian, 9 March 2018, p.2.

Employers have taken legal ­action to try to overturn the Fair Work Commission decision ­approving the merger of the construction and maritime unions.

The Australian Mines and Metals Association and Master Builders Australia yesterday ­appealed the decision to a ­commission full bench.

The employers are also seeking a stay of the decision, which, if granted, would mean the merger would not proceed from its scheduled date of March 27.

The AMMA and MBA say the commission decision contained errors of laws and should not have approved the amalgamation.

Maritime Union of Australia national secretary Paddy Crumlin said the unions would vigorously oppose the appeal and defend the rights of workers to have freedom of association.

“Our members have overwhelmingly supported this amalgamation (with the CFMEU) and it should be up to them to decide whether they merge,” he said.

Former employment minister Eric Abetz welcomed the ­appeal, saying the government should intervene in the proceedings in support of the employer application. He said the government should move urgently to pass laws subjecting union ­mergers to a public interest test.

Workplace Relations Minister Craig Laundy said the government would resume talks with Senate crossbenchers in a bid to win support for the bill, which has yet to be put to a vote.

AMMA is lobbying for an amendment to the bill designed to have the public interest test take affect before March 27 but Mr Laundy declined to express a view on the proposed amendment.

The Australian, 8 March 2018:

Employers have accused the Turnbull government of being missing in action after the Coalition failed to pass laws subjecting union mergers to a public interest test.

Workplace Relations Minister Craig Laundy said today the government would resume talks with Senate crossbenchers in a bid to win support for the bill, which has yet to be put to a Senate vote.

 “The Ensuring Integrity Bill remains a priority for the Government, but because of Labor’s opposition we need the support of the crossbench,’’ he said.

“Despite what has been said in recent days, the Government simply didn’t have the numbers to pass the Bill. I am reaching out to the crossbench to see if that has changed.

U.S. court directs four American tobacco companies to publicly set the record straight on the dangers of their products

World Health Organisation (WHO), Statement, 29 November 2017:

GENEVA - In major victories for tobacco control efforts, four U.S. tobacco companies are publishing court-ordered “corrective statements” to set the record straight on the dangers of their products, while a major French bank has announced it will divest its interests in the tobacco industry.

Dr Douglas Bettcher, Director of WHO’s Prevention on Noncommunicable diseases department, says these moves reinforce to the world the need for accelerated action to protect people from tobacco.

“The tobacco control community has been saying for decades that tobacco kills, is addictive and that its manufacturers have known this, while profiting from the suffering of millions of their customers,” says Dr Bettcher. “But by being ordered by the courts to issue these corrective statements in American newspapers and on TV stations, the industry itself has been forced to come clean and acknowledge once and for all that its tobacco products kill.”

The publication of the corrective statements, which started 26 November 2017, follows a lawsuit filed by the U.S. Justice Department in 1999 under the Federal Racketeer Influenced and Corrupt Organizations law. The Federal Court first ordered tobacco companies to implement these corrective statement adverts in 2006, but years of tobacco industry appeals blocked their publication.

But last month, a U.S. court directed that four American companies, Philip Morris USA, R.J. Reynolds Tobacco, Lorillard and Altria, publish the corrective statements on the health effects of tobacco use, second-hand smoke, the false sale and advertising of low tar and light cigarettes as less harmful than regular cigarettes, that smoking and nicotine are highly addictive, and that they have designed cigarettes to enhance the delivery of nicotine.

The statements, appearing in advertisements paid for by the tobacco industry, were ordered to appear in more than 50 U.S. newspapers, as well as on American television stations.

Also, on 24 November, French bank BNP Paribas announced that it would stop its financing and investment activities related to tobacco companies, including producers, wholesalers and traders.

In its announcement, the bank acknowledged the efforts by WHO, and the focus of the WHO Framework Convention on Tobacco Control (WHO FCTC), to ensure people have access to the highest standard of health and “the importance of measures regarding the reduction of demand and supply in order to meet this objective.”

BNP is the latest financial institution to declare it is ending its association with the tobacco industry, including Axa SA and the Bank of New Zealand.

“The message we must take from all this is that the industry cannot be trusted, not now, and not in the future when it tries to market new products as less harmful, like heat not burn, and by funding new organizations that purport to be working for a smoke-free world,” says Dr Bettcher.

The admissions by the U.S. tobacco companies that its products kill and are designed for addiction should strengthen national tobacco control efforts, including implementation by governments of commitments in the WHO FCTC.

To assist in country-level implementation of the WHO FCTC, WHO has introduced the MPOWER package of technical measures and resources, each of which reflects one or more of the demand reduction provisions of the Convention.

These include monitoring tobacco use and the impact of prevention policies; protecting people from tobacco smoke by introducing smoke-free public and workplaces; offering people help to quit tobacco use; warning about the dangers of tobacco use, including by implementing graphic health warnings and plain packaging; enforcing bans on tobacco advertising, promotion and sponsorship; and raising excise taxes on tobacco.

NSW Environmental Defender's Office has served irrigator and Nationals donor Peter Harris a summons demanding he return more than five billion litres of water he is alleged to have illegally taken from the Barwon-Darling River

The Australian, 14 November 2017:

The NSW Environmental Defender’s Office has served irrigator and Nationals donor Peter Harris a summons demanding he return more than five billion litres of water he is alleged to have ­illegally taken from the Barwon-Darling River.

The incidents of alleged water theft are the subject of ICAC, Ombudsman and Office of Water inquiries, which follow the standing down and resignation of former senior NSW water bureaucrat Gavin Hanlon.

It has also been revealed that NSW Primary Industries Minister Niall Blair benefited Mr ­Harris, a cotton farmer, and other irrigators by changing the laws to pardon Mr Harris retrospectively for illegal flood works and that Mr Blair lobbied Environment Minister Gabrielle Upton to change the law to justify a decision to give Mr Harris more water trading rights.

In their action in the Land and Environment Court, the plaintiffs demand “the return of water, up to the equivalent of the total volume ... (to) occur immediately after the water is extracted from the water source and has passed through metering equipment” to measure it, but before it is stored.

Alternatively, the defender’s office is seeking orders so that Mr Harris forfeits his entitlement to the equivalent amount of water in ­future to replenish the river.

The summons was served on Peter James Harris and Jane Maree Harris and the matter is listed for December 8.

The amount of water allegedly taken would fill more than 2000 Olympic swimming pools.

Office chief executive David Morris said the action was being taken because the NSW government was not moving quickly enough to penalise Mr Harris.

“On two occasions EDO NSW has written to the NSW government outlining concerns about potential breaches of the Water Management Act 2000 (NSW) and informing the government of intention to commence civil enforcement proceedings,” he said.

“No adequate response has been received from the government. In the face of government inaction, our client (the Inland Rivers Network) has seen no other choice but to commence proceedings in the Land and Environment Court.”

US President Donald Trump can run but can he hide?

After months of fighting to have this court case go away US President Donald J. Trump is in the process of being forced to hand over documents relating to at least ten sexual assault allegations, as part of a defamation action.

This subpoena only became public in September 2017.

Subpoena in Summer Zervos v Donald J. Trump by clarencegirl on Scribd

According to BuzzFeed on 15 October 2017:

Trump’s response to Zervos’s motion is due Oct. 31, according to Zervos’s attorney, Gloria Allred. In a statement Allred said: “We are hopeful that the court will deny President Trump’s motion to dismiss, so that we may move forward with discovery and obtain relevant documents and testimony.”

The original compliant and jury demand was lodged in the Supreme Court Of The State Of New York County Of New York in January 2017 as Summer Zervos v Donald J. Trump.

UPDATE

Trump's response has been reported in the media as characterising his allegedly defamatory statements, about private citizen Summer Zervos, as political opinion protected under the US Constitution.

Facebook Inc continues to test the world's patience when it comes to privacy issues and US patience in relation to taxation matters

Worldwide Facebook Inc is estimated to have 2.01 billion monthly active users, with est. 1.7 billion of these users living outside of the USA and Canada.

Australian users comprised 17 million of these account holders in August 2017 - 12 million logging in daily.

In pursuit of profit this social media company is a ruthless data miner – collecting and collating information about every available aspect of the lives of all holders of Facebook accounts.

A fact that makes this company’s users a target of US federal government mass surveillance.

Given that Facebook Inc created a holding company Facebook Ireland Ltd in the low-taxing Republic of Ireland and it is this company which appears to legally possess the data of those est.1.7 billion users, it now finds itself before European Union courts.

Privacy activist @maxschrems, 3 October 2017:

Facebook operates its international business outside of the United States and Canada via a separate company in Ireland called “Facebook Ireland Ltd”. 85.9% of all worldwide Facebook users (everyone except USA and Canada) are managed in Dublin (Link), which is understood to be part of Facebook’s tax avoidance scheme.

Facebook currently sends all user data to its parent company, “Facebook Inc.” in the United States for processing. European law (Articles 25 and 26 of Directive 95/46/EC) requires that data can only be transferred outside of the EU if the personal data is “adequately protected”. This is in conflict with US mass surveillance laws, which “Facebook Inc.” in the USA is subject to.

Max Schrems: “In simple terms, US law requires Facebook to help the NSA with mass surveillance and EU law prohibits just that. As Facebook is subject to both jurisdictions, they got themselves in a legal dilemma that they cannot possibly solve in the long run.”

The Data Protection Commissioner in Ireland is investigating a complaint made by Max Schrems, an Austrian student with a Facebook account. This complaint relates to the transfer of his data by Facebook Ireland to Facebook Inc. in the United States for processing - an act which is alleged to violate European fundamental rights under Articles 7, 8 and 47 of the European Charter of Fundamental Rights.

The Data Protection Commissioner had been previously taken to the Court of Justice of the European Union in relation to refusal to investigate a complaint made by Mr Schrems regarding the fact that Facebook Ireland Ltd (‘Facebook Ireland’) transfers the personal data of its users to the United States of America and keeps it on servers located in that country. 

The subsequent investigation by the Data Protection Commissioner has given rise to a High Court case in Ireland (3 October 2017 judgement). The Court has now referred the issue of the validity of the European Commission’s Standard Contractual Clause decisions to the Court of Justice of the European Union for a preliminary ruling.

History of the Case according to Max Schrems:

The case is based on a complaint, filed by Mr Schrems against Facebook in 2013:

* The case is based on a complaint [PDF] brought by Mr Schrems against Facebook Ireland Ltd. before the Irish Data Protection Commissioner (“DPC”) in 2013 (4 years ago).

* The DPC first refused to investigate the complaint, calling it “frivolous”, but Mr Schrems subsequently succeeded before the CJEU, which overturned the “Safe Harbor” (a EU-US data sharing system) in 2015 [case C-362/14] and ruled that the DPC must investigate the complaint.

* After the invalidation of “Safe Harbor”, Facebook used another legal tool to transfer data outside of the EU, called “Standard Contractual Clauses” (SCCs) [Facebook’s SCCs - PDF].

* SCCs are a contract between Facebook Ireland and Facebook USA, where Facebook USA pledges to follow EU privacy principles [official EU Info Page].

* The case subsequently continued with an updated complaint [PDF] in 2015. The Irish DPC joined Mr Schrems view that the SCCs cannot overcome fundamental problems under US surveillance laws, and specifically agreed that there is no proper legal redress in the United States in such cases. Other issues raised in Mr Schrems complaint have not been investigated yet.

* The DPC refused to use its power to suspend data flows of Facebook as asked by Mr Schrems.

* Instead of only prohibiting Facebook’s EU-US data transfers under Article 4 of the SCCs, the DPC took the unusual move of issuing proceedings against Facebook Ireland Ltd. and Mr Schrems before the Irish High Court. In the procedure the DPC aims to invalidate the SCCs entirely by referring the case to the European Court of Justice (CJEU) in Luxembourg.

*The case was heard for five Weeks in February 2017. The United States Government was joined as an “amicus” to the case, along two industry lobby groups and the US privacy non-profit “EPIC”.

Facebook Inc’s "Double Irish" tax avoidance scheme and other matters also saw it before a US court in 2016, having refused to comply with a number of IRS tax summons. The court case continues to date.

The IRS 2008-2010 audit of Facbook Inc resulted in an assessment of the intangible assets transferred in those years having a value of US $13.8 billion, increasing Facebook's 2010 income by US $84.9 million and causing an income tax deficiency for the parent company.

Excerpt from United States Securities And Exchange Commission filing by Facebook Inc for the quarterly period ended June 30, 2016:

We are subject to taxation in the United States and various other state and foreign jurisdictions. The material jurisdictions in which we are subject to potential examination include the United States and Ireland. We are under examination by the Internal Revenue Service (IRS) for our 2008 through 2013 tax years. Our 2014 and subsequent years remain open to examination by the IRS. Our 2011 and subsequent years remain open to examination in Ireland. We do not anticipate a significant impact to our gross unrecognized tax benefits within the next 12 months related to these years. On July 27, 2016, we received a Statutory Notice of Deficiency (Notice) from the IRS relating to transfer pricing with our foreign subsidiaries in conjunction with the examination of the 2010 tax year. While the Notice applies only to the 2010 tax year, the IRS states that it will also apply its position for tax years subsequent to 2010, which, if the IRS prevails in its position, could result in an additional federal tax liability of an estimated aggregate amount of approximately $3.0 - $5.0 billion, plus interest and any penalties asserted. We do not agree with the position of the IRS and will file a petition in the United States Tax Court challenging the Notice. If the IRS prevails in the assessment of additional tax due based on its position, the assessed tax, interest and penalties, if any, could have a material adverse impact on our financial position, results of operations or cash flows. [my yellow bolding]