The BGH decides that Facebook data from Whatsapp, Facebook and Instagram may not link to each other – even if the users have agreed to this in the terms and conditions.
The Bundeskartellamt has achieved an important success in a pioneering process regarding the sheer limitless power of Facebook to use user data. According to a decision of the Federal Court of Justice (BGH), a decision of the antitrust authority from February 2019 is initially applicable. The social network was prohibited from using conditions of use that allowed Facebook to use data obtained from in-house services such as Instagram or Whatsapp, or using the “Like” button on other websites and apps are collected – so-called off-Facebook data. According to the preliminary assessment, the BGH has “no serious doubts” that Facebook has thereby abused its dominant position. The BGH thus overturned a decision of the Düsseldorf Higher Regional Court, which had initially suspended the ruling in an urgent procedure. On November 25, the OLG will negotiate the main proceedings on the dispute.
According to the chairman of the Senate, Peter Meier-Beck, the decisive factor in the decision is that Facebook ultimately leaves users with no choice as to whether they really want the better “personalized” interface on the platform that is created using the expanded data collection. From the BGH’s point of view, Facebook would also have to give users the option of using it that is not so individually tailored, but only uses the data that is collected on Facebook itself. This follows from the special responsibility of a dominant company. “Facebook has to give users the opportunity to reveal less about themselves,” explained Meier-Beck.
According to the BGH, the ever more precise use of data leads to a lock-in effect, which makes the offer more attractive and at the same time makes advertising financing more lucrative. “As soon as the network becomes more widespread, the alternatives become less important,” said the Senate chair.
Although the decision of the BGH is formally only an urgent decision, it has clearly positioned itself in terms of content on some central questions that the Bundeskartellamt has raised. The authority tries to establish a concept at the judicial level that has long been discussed: that the data that a user provides is not just information worth protecting from a more or less private sphere, but a tangible entry price for the beautiful, colorful network world . Because with an economic view of collecting, the market power of the internet giant could be better controlled, according to the cartel guards. A creative mix of data protection and antitrust law, if you will. Last year, however, the OLG was not convinced by the Office’s arguments: data is not a fee because, unlike financial means, it is “easily duplicable”.
Rupprecht Podszun, professor of antitrust law at the University of Düsseldorf, called the decision a spectacular success for the Bundeskartellamt and an important signal for competition on the Internet. “The BGH puts the focus on the freedom of choice and autonomy of the user. This is an important step forward – it makes the user’s self-determination a benchmark for competition on the Internet.” The cartel office can now ask Facebook to present a plan within four months to stop the merging of data into so-called “super profiles”. The scientist critically assessed the long duration of the procedure. It could take months or years before a decision is made in the main. This is problematic because economic power is solidifying extremely quickly in digital markets.
In the BGH hearing this Tuesday it had already become apparent that the Karlsruhe court was more open to the arguments of the cartel guards. The agency had claimed that Facebook had “a clear advantage over its competitors in optimizing the news feed algorithm and thus in developing and improving its product”.
Facebook lawyer Thomas Winter had countered that Facebook couldn’t be forced to offer customers a poorer service instead of the best product. Meier-Beck made it clear, however, that it could not be right that a dominant player should not be subject to any barriers in the development of its offers. Facebook is “ubiquitous”: Wherever you move on the Internet, there is a possible connection to the social network. That was almost the original sound of the Bundeskartellamt. “It is unacceptable from an antitrust and data protection law point of view that you pay with your entire surfing behavior to use Facebook,” said his representative Jörg Nothdurft.