The German Federal Cartel Office today announced its decision in the proceedings against Facebook. The authority prohibited the company from collecting data outside the social network. Here is an assessment by Sebastian Louven, a legal scholar at the university's Centre for Information Society Law:
'The authority has found a violation of antitrust law, or more precisely an abuse of conditions: Facebook is allowing itself far-reaching rights in the handling of personal data - even when this is obtained via third-party providers. This happens, for example, via the "Like" button on websites of other providers. This violates applicable law. The decision has an impact on the company's entire business model. For the time being, it is no longer allowed to collect extensive data from its users on the basis of its previous terms of use.
The proceedings clearly demonstrate the legal challenges involved in regulating digital platforms. Until now, it has mostly been about data protection considerations. In 2016, however, the Federal Cartel Office linked these with antitrust law. Under current antitrust law, a company with market power is prohibited from abusing its market position by imposing unreasonable conditions on its contractual partners that would not be possible in a functioning competitive environment. The question in these proceedings was therefore whether and, if so, what significance data protection law and possible infringements of it can have for the assessment under antitrust law. The authority has now decided that an informed and voluntary consent is required for a far-reaching consolidation of personal data that is not processed on the social network Facebook itself. However, this is not currently the case. The company will now be given the opportunity to amend its terms of use. Facebook has already announced that it will lodge a complaint against the decision with the Düsseldorf Higher Regional Court.
The decision was to be expected in principle, as the authority had already decided some time ago that the extensive processing of personal data from sources outside the platform is in breach of antitrust law. However, its legal reasoning is surprisingly unclear. According to the authority, the abuse of conditions does not depend on a breach of applicable data protection law, but merely on a consideration of data protection assessments. However, it remains unclear how exactly the Federal Cartel Office carried out this assessment. At first glance, however, it appears to have attempted to interpret data protection regulations. This gives rise to a large number of fundamental questions for antitrust law that need to be clarified.