• Lise-Lotte Lääne

Facebook in the grip of Germany's Federal Cartel Office (FCO). Can it happen in the Baltics too?

By infringing data protection law - you may risk breaching also competition law. How does that sound?

Data vs Competition or Data with Competition?

On 7 February 2019, FCO published its decision in the so-called ‘Facebook case’. In the already quite notorious case, FCO found that Facebook held a dominant position in the market for social networks, and that by gathering ‘too much’ data about the users, Facebook abused its position.

Andreas Mundt, President of the Bundeskartellamt: “With regard to Facebook’s future data processing policy, we are carrying out what can be seen as an internal divestiture of Facebook’s data. In future, Facebook will no longer be allowed to force its users to agree to the practically unrestricted collection and assigning of non-Facebook data to their Facebook user accounts. [...] In future, consumers can prevent Facebook from unrestrictedly collecting and using their data.”

Facebook's terms and conditions foresee that the users of Facebook can use social network under the precondition that Facebook can collect user data also outside of the Facebook website in the internet or on smartphone apps and assign this data to the user’s Facebook account. For example, if the user is also active in Instagram, which is owned by Facebook, all the data gathered in Instagram is also assigned to the Facebook user account. Furthermore, if the user has combined its Facebook account with a third party website, all the data gathered there, may also be used by Facebook.

Now – FCO, as the first among the National Competition Authorities, has found that Facebook has breached the data protection laws, and consequently, has committed an infringement of competition law. According to the decision, Facebook now must ask explicit consent from the user to use the user’s data which is gathered by other websites, even though the user itself has connected its Facebook account with the other website.

Can it happen in the Baltics too?

With Facebook? Theoretically yes, but practically very unlikely. Facebook might be a fish too big to catch. However, the case is one of a kind, and it is more than probable that national competition authorities would like to apply the principles of the case in other business areas.

What makes the decision special is the fact that FCO basically assessed Facebook’s compliance with competition law through the lens of data protection law – when you have infringed the latter, then you might have infringed also the former. I.e. data protection and competition law go hand in hand (at least according to the FCO).

So all the companies who process data, and hold at the same time a dominant position in the relevant market, must be really careful. Competition authorities may assess your company’s compliance not only from the competition point of view, but also from the data protection law perspective.

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