You have a new notification: Federal Court of Justice upholds FCO’s antitrust decision against Facebook's broad data collection practices in Germany

You might still remember the FCO’s landmark decision in February 2019 against Facebook’s processing of user data, finding that Facebook:

•  is the dominant company in the German market for social networks having built a unique database for individual users and having a market share of more than 95% (daily active users) and more than 80% (monthly active users); and
•   has abused its market power based on the extent of collecting, using and merging data in a user account.

Whilst not levying a fine against Facebook, the FCO imposed the following restrictions:

• Facebook-owned services. Facebook-owned services like WhatsApp and Instagram can continue to collect data. However, assigning the data to Facebook user accounts will only be possible subject to users’ voluntary consent. Where consent is not given, the data must remain with the respective service and cannot be processed in combination with Facebook data.
• Third party websites. Collecting data from third party websites (e.g. those that contain embedded Facebook interfaces such as the “Like” or “Share” buttons or use the “Facebook Analytics” service in the background) and assigning them to a Facebook user account will only be possible if users give their voluntary consent.

Voluntary consent means that the use of Facebook’s services must not be subject to users consenting to their data being collected and combined in this way. If users do not give voluntary consent for data processing in relation to Facebook-owned services and third party websites, Facebook must not exclude them from its services and will have to refrain from collection and combining their data. Facebook has been given a one year deadline to develop proposals for solutions to this effect.

On appeal by Facebook, the Düsseldorf Higher Regional Court temporarily suspended the FCO’s decision in August last year. Unsurprisingly, the FCO appealed that ruling before the Federal Court of Justice in Karlsruhe, which overturned the lower court’s decision concluding, in an almost Eureka-esque way, that:

“There were neither serious doubts about Facebook’s dominant position on the German market for social networks, nor that Facebook is abusing this dominant position with the terms prohibited by the Bundeskartellamt.”

The steering wheel has now been handed back to the Düsseldorf court to decide on Facebook’s main appeal which will be heard later this year, or in early 2021.