> The EU decision will not have direct consequences for users, unfortunately, as it can be appealed to. Such an appeal would lead to a lengthy judicial process.
So companies can flout the law for years, making massive profits, and continue to do so for as long as they can string along an appeal process? Seems like a pretty nice loophole.
Depends on jurisdiction but it is possible to ban or allow actions to continue. It’s up to the court in those cases to weigh up potential harms on either side.
If a court decides the action is overtly harmful, they might ban it pending appeal. This happened with the U.K. government trying to send refugees to Rwanda. The ECHR blocked action since it was likely illegal and wouldn’t be easily reversed once the activity had taken place.
Imagine I sued you on the basis that the house you are living in is stolen and isn't yours to inhabit. Would it be fair that you can't live there while a lengthy court process figures out the truth?
In special cases, the judge can issue an preliminary injunction where a party is compelled to do something (or not do something) while the court case is ongoing, but the bar for that is pretty high.
If you sued me the case would not last 4.5 years, because a normal person doesn't have the funds to sustain a fight that long. That's the entire point of the gripe - corporations can extend these fights indefinitely and they will because it's profitable for them. That's not a good system for getting companies to act accountable for their choices.
Not doing so would allow mere allegations to put your business on hold until the entire court process, all the way to the highest court, if applicable, is complete. It's not a loophole. It's a fundamental tenant of innocent until proven guilty.
The process shouldn’t take years of course. Once a court no matter how minor finds you guilty, you are guilty.
Now, you might want to appeal that to the next instance which makes it take years. But a court has already found you guilty.
In this case the law if it was sane should stipulate that the business either stop the violation during the appeal or risk the fine for the whole period of the appeal process if it turns out after appeal that you were guilty of the violation after all.
Facebook should have to seriously consider whether it’s worth the gamble to both fund the appeal process and pay the accumulating fines (which, again if the law is sane, amount to more than what FB would lose by simply stopping the violation).
>This is civil law, not criminal. Presumption of innocence doesn’t apply.
If the court is so sure that the plaintiff will prevail, why even have a trial? The answer is that until the court rules, barring 100% certainty of the plaintiff prevailing, you have to wait for the court's deliberation or you have only oppression and no justice at all. Both sides must have a chance to make their case.
In civil law, the roles of plaintiff and defendant are largely interchangeable. If you order food and don't like it, the restaurant might sue you for payment. Or you need to sue the restaurant if you already paid. It's rather arbitrary, being only based on the order of the exchange of food and money.
In any case, take it up the law, because it is as I said: the burden of proof is different, its "preponderance of the evidence", i. e. 50%.
You are talking punish first, then have a trial later. Regardless of the rules of evidence, or who is suing who, the reason we have courts and trials is to allow both sides to be heard, and a decision be made on who violated the law, and then on how to remedy it. You cannot have justice if one side is not heard, or is put out of business before getting to make their case.
>The loophole is that the company is allowed to continue breaking the law while the appeal is in progress.
This means that the court is not sure that that is the case yet, and that the rights of the defendant are being respected. If you just kill the business on the mere accusation of wrongdoing, there is no justice, only oppression.
It seems fair, as long as the fines and penalties for continuing noncompliance are backdated to when the initial decision was made, even if they're only due after the last appeal fails.
With that setup, if they're confident that they'll come out on top, they can keep tracking while appealing. If they're less confident, they'll pause tracking to prevent the buildup of fines.
> So companies can flout the law for years, making massive profits, and continue to do so for as long as they can string along an appeal process? Seems like a pretty nice loophole.
Actually, they may yet receive a hefty fine. The court ruled on the principle: now, each lower jurisdictions may take action based on that principle.
Would it wreck the legal framework to institute a concept wherein you can appeal, but if, on appeal, the lower court ruling holds, the punishment/fine is retroactive to the date of the lower court ruling?
I.e., make it so that there is no free pass to continuing presumptively illegal activity.
Wouldn't it be that way already? The punishment even for the whole extended period of time is still often nothing to big tech. Punishments need to be tailored to those being punished to cause equal effect.
Under GDPR, fines can be up to 2% of annual revenue (not profit) for "less severe" infringements. Facebook had $118 billion revenue in 2021, so that would be $2.36 billion. And I think the fines will repeat.
For more severe infringements, it's double that, so $4.72 billion. Which would be around half of profits for 2021.
That's how liberals fight the second amendment in the US. Continue to pass obviously unconstitutional laws that they know will inevitably get overruled, and then pass another slightly different one once it does. Constant state of appeals. And nobody gets any recourse for squandered rights in the end. No politicians are barred or held accountable for their blatant abuse of the legal system. It's like a DoS attack on liberties.
Privateers generally had a letter of marque from an actual government, otherwise they were just pirates. If gun owners need to get a letter of marque from their state government to own arms, I think the gun control people would be on board...
So companies can flout the law for years, making massive profits, and continue to do so for as long as they can string along an appeal process? Seems like a pretty nice loophole.