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BACKGROUND: Does data protection and antitrust law go together? Facebook case before BGH | message


KARLSRUHE (dpa-AFX) – If you want to be active on Facebook, you have to agree that data from WhatsApp, Instagram and many other services and websites are merged with your account. The Bundeskartellamt wants to end this practice and, in addition to competition law, also relies on the General Data Protection Regulation (GDPR). Against a corresponding ruling from February 2019, Facebook moved to the Düsseldorf Higher Regional Court (OLG) and achieved its first success. Until a final decision is made, Facebook does not have to implement the cartel guards’ order. The legal complaint of the cartel office, however, is now in dispute before the BGH.

What is the Bundeskartellamt criticizing?

Facebook gives its users no choice: if you want to be part of it, you have to agree that the company collects and merges data. From the point of view of the cartel guards, this is not voluntary and therefore not in the sense of the DGSVO, which requires express consent. Every internet user knows this when asked if cookies may be set. From the point of view of the cartel office, Facebook is abusing its market power, because interested parties can practically not switch to alternatives.

What does the Federal Cartel Office require?

Services like WhatsApp or Instagram should continue to collect the data. An assignment to user accounts on Facebook should only be possible with the voluntary consent of the user. The same should apply to data from other websites. “In the future, Facebook will no longer be able to force its users to agree to a virtually limitless collection and assignment of non-Facebook data to their user account,” said the President of the Bundeskartellamt, Andreas Mundt, at his house in 2019. The combination of the data sources had contributed significantly to Facebook being able to achieve its market power.

What does the General Data Protection Regulation say?

The 2016 GDPR states that it should only be assumed that a data subject has given their consent voluntarily “if they have a real or free choice and are therefore able to refuse or withdraw their consent “without suffering disadvantages”.

What has the OLG decided so far?

The OLG has not yet decided on the matter. However, it ordered the suspensive effect of the Facebook complaint. This means that Facebook can continue its business practice first.

What problems does the OLG see in the decision of the cartel office?

The OLG was very critical of the Cartel Office’s justification. The judges said that ignorance of the terms of use was not based on Facebook’s market power, but rather on indifference or convenience of users. And even if the data processing complained of violates data protection regulations, this does not mean that it also violates competition law.

The OLG judges also criticized that the cartel office had not carried out sufficient investigations into a so-called as-if competition to determine what conditions had formed for the users in the competition. And: If data is given to Facebook, it does not weaken the consumer economically. Users could also make the data available to competitors.

What consequences could a BGH decision have?

In the opinion of the anti-trust law expert Peter Stauber from the law firm Noerr (Frankfurt am Main), the BGH would follow the OLG’s reasoning for the entire digital economy. It would set a precedent for the interaction between data protection law and antitrust law. A win from Facebook, however, could only be temporary. Because the Federal Ministry of Economics, according to Staubers, has proposed tightening regulations for the planned amendment to German antitrust law, which are important in the Facebook case./moe/DP/zb

— By Sönke Möhl, dpa —

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