The Supreme Court has dismissed a Data Protection Commission appeal over a temporary stay on a regulatory decision affecting TikTok, allowing the stay to continue until judgment is delivered in TikTok's separate High Court appeal.
Mr Justice Gerard Hogan, delivering judgment on April 30, joined the judgment of Mr Justice Murray and said TikTok had shown substantial grounds for its statutory appeal under the Data Protection Act 2018. He also concluded that the company was likely to suffer substantial and effectively irrecoverable losses if the stay were not maintained for the relatively short period involved.
The dispute arose from a DPC decision with potentially wide consequences for TikTok's operations. TikTok claimed that its losses could exceed €1 billion without a stay and that thousands of employees working in China might have to relocate. The DPC argued in response that granting a stay could potentially compromise the privacy rights of millions of TikTok users.
A central issue before the Supreme Court was which legal test should govern the temporary relief. The DPC argued that EU law, including the test derived from the Court of Justice's Zuckerfabrik case, should apply. Hogan J rejected that position, holding that Irish procedural law governs applications of this kind, subject to the EU principles of equivalence and effectiveness.
He also rejected the DPC's argument that the regulatory decision should be treated as a joint decision involving other European supervisory authorities. Although the GDPR requires consultation and can involve binding European Data Protection Board decisions, Hogan J said the final legal decision remains that of the lead supervisory authority, in this case the DPC.
The High Court had already heard TikTok's substantive statutory appeal and reserved judgment by the time the Supreme Court considered the issue. Hogan J therefore regarded the stay as short-lived and said there was no obligation to refer a question on the temporary stay to the Court of Justice of the European Union.
The Supreme Court accordingly dismissed the DPC's appeal and continued the stay pending the High Court judgment.