Data collection through social networks: German Federal Supreme Court rules against Facebook
- Digital Law
At the end of June, the German Federal Supreme Court (BGH) provisionally confirmed the allegations of the German Federal Cartel Office (BKartA) that Facebook was abusing its dominant position.
The Düsseldorf Higher Regional Court has a different opinion
Facebook filed an appeal against the BKartA's order with the Düsseldorf Higher Regional Court (OLG Düsseldorf), which promptly (but provisionally) granted Facebook an injunction suspending the order. As a result, Facebook did not have to comply with the decision of the BKartA in the meantime. The OLG Düsseldorf also made it more than clear in its decision that it did not agree with the BKartA's advance into the realm of data protection. The old order: data protection here and cartel law there, seemed to be restored. It was therefore more surprising that the BGH overturned this decision of the OLG Düsseldorf - again with clear words - and thus confirmed that of the BKartA. This means that - until a final decision is made - Facebook is obliged to follow the latter.
However - and here comes another twist to this already very exciting story - the BGH did not base its decision on the violation of data protection regulations identified by the BKartA. Instead, the BGH simply attested Facebook a dominant position in the market of social networks and argued that the lack of choice for users or consumers to choose one or the other use of Facebook (with low or full data protection) was the problem. The users of Facebook therefore have no real choice to use Facebook without further disclosure of usage data (e.g. only with the data generated on Facebook itself). The BGH saw this as a completely "normal" abuse of a dominant market position and therefore does not need to refer to data protection.
The BGH elegantly avoided the question whether the BKartA can also punish certain violations of data protection law. On the other hand, however, it also follows that - even if Facebook complies with any data protection regulations - excessive data collection and processing can be an abuse of a dominant position. The BGH decision thus probably increases the pressure on Facebook once again compared to that of the BKartA.
In principle, the BKartA can now carry out its order and will probably ask Facebook to submit a proposal for implementation. Theoretically, it is still questionable how the main proceeding - which is still pending before the OLG Düsseldorf - will turn out. According to the clear words of the BGH, however, the OLG Düsseldorf will probably also have to follow suit, albeit with a different justification. And for Facebook, it still remains to settle the matter by simply giving its users more freedom of choice.
Please note: This blog merely provides general information and does not constitute legal advice of any kind from Binder Grösswang Rechtsanwälte GmbH. The blog cannot replace individual legal consultation. Binder Grösswang Rechtsanwälte GmbH assumes no liability whatsoever for the content and correctness of the blog.