Facebook yesterday appealed the fine imposed on it by UK data watchdog, the Information Commissioner’s Office (ICO), for its role in the Cambridge Analytica scandal. But some legal and data experts believe that Facebook’s main goal isn’t to win: it’s to send a message.
Facebook’s central defence is that the ICO, during its wide-reaching investigation into political data misuse, did not find any evidence that specifically proved UK citizens’ data was shared with Cambridge Analytica.
“Therefore, the core of the ICO’s argument no longer relates to the events involving Cambridge Analytica,” said Facebook’s lawyer Anna Benckert in a statement.
“Instead, their reasoning challenges some of the basic principles of how people should be allowed to share information online, with implications which go far beyond just Facebook, which is why we have chosen to appeal.”
But the ICO opted to enforce the maximum fine of £500,000 in October on the basis that, while it couldn’t find evidence directly showing UK Facebook members’ data was used by Cambridge Analytica, Facebook’s practice of giving third-party developers access to personal data put UK users at risk.
Facebook is putting its “best legal foot forward”
Many are questioning why Facebook is appealing a fine that’s equivalent to just 15 minutes of the tech giant’s profits. But legal and data experts believe the appeal is about sending a message, rather than winning the case.
“They are saying that we are not going to let the ICO and other regulators walk all over us on this, we’re going to put up a fight,” director of Legal Services at ThinkMarble Robert Wassall told Verdict.
“Maybe Facebook are taking the view that they may not win that fight, but if they have a fight it will send a message in itself to regulators that they’ll need to tread carefully with Facebook.”
Matt Lock, director of Sales Engineers at software security firm Varonis, agrees with this position.
“Rather than pay and move on, it’s spending the time and effort of its legal team to question the fine,” he told Verdict.
“The company wants the ICO to know that they are not going to simply hand over money.
“With GDPR fines becoming a very real possibility for the biggest social media companies down the road, Facebook is putting its best legal foot forward.”
Facebook fine appeal: Will the social media giant win?
The case will be considered by the General Regulatory Chamber tribunal, an independent body. But will the Facebook fine appeal be successful?
Wassall doesn’t think so:
“I struggle to see how Facebook is going to be terribly successful about this.”
“If people’s privacy is compromised, someone’s got to pay for this type of thing and it’s the organisation who has that data in the first place.
“Arguing this case on a purely legal basis, on an evidential basis, isn’t necessarily going to be successful.”
Joseph Carson, chief security scientist at cybersecurity firm Thycotic, agrees and believes that Facebook is “walking a very fine line”.
He told Verdict that the technicality that Facebook are using to avoid the fine is “highly likely to fail as it is known that UK citizens did in fact take the survey in question”.
He added that it could just delay the fine only for Facebook to be challenged under EU GDPR for its September data breach.
“That would result in a much more serious financial fine for failure to protect sensitive personal information,” he said.
While the case is not being tried under the General Data Protection Regulation (GDPR), its introduction in May has put the spotlight on how companies handle personal data.
The Facebook fine appeal is the first big challenge to the ICO’s tougher stance on data misuse, particularly by large tech companies.
The case will be closely followed by businesses and data protection officers around the UK and Europe, but according to Wassall it shouldn’t, “in a legal sense”, establish a precedent.
That’s because fines are imposed on a case-by-case basis.
But whatever way the result goes, the implications will be far reaching for businesses and individuals.
“If Facebook lose, that will reinforce what many people think: the ICO is getting tough about this and they’ve got justification for getting tough,” says Wassall.
“And I think that should send a strong message to virtually any organisation.”
If Facebook are successful, Wassall says it will be a “big slap in the face for the competency of the ICO”.
It will also signal to other large companies that it is worth appealing.
The case also raises wider questions around how personal data should be handled, particularly Facebook’s argument that the ICO’s interpretation means that people “should not be allowed to forward an email or message without having agreement from each person on the original thread”.