Hearing of the ECJ: circularity of data protection | tagesschau.de

Status: 10/05/2022 08:13

Is Facebook abusing its dominant position in the use of its users’ data? And: can the antitrust authorities take action against it? The European Court of Justice is dealing with these questions today.

Claudia Kornmeier, ARD Legal Department

It is about data protection and possible abuse by the Meta group on Facebook. Nothing new so far. The novelty, however, is who works on the other side: there are neither data protection authorities nor consumer associations – this is the Federal Antimonopoly Office. However, it is still unclear whether this approach will be successful. Today, the Grand Chamber of the Court of Justice of the European Union (ECJ) hears about it.

What’s behind it: Personal information is the currency in which users pay for an account on social networks. Data has economic importance in the marketplace, especially when it can be linked to personal profiles. Therefore, from the point of view of the Bundeskartellamt, the way in which the data is processed is also important for the functioning of competition.

Collecting metadata managed by the Cartel Office

The Bonn office therefore took on the task of collecting data from Meta. The American company collects data from its users on the one hand on Facebook itself and on the other hand on the entire web from so-called external sources. These can be Meta subsidiaries such as Instagram or WhatsApp, as well as all websites and applications that interface with Facebook, such as the “Like” button. Meta uses this data to create profiles of its users. If you want to use Facebook, you must consent to such a combination of your data.

From the point of view of the Bundeskartellamt, Meta is abusing its dominant position which the group owns as it also has very high market shares through its Instagram and WhatsApp subsidiaries. In its original 2019 decision, the Cartel Office assumed a market share of over 95 percent among daily active users.

Accordingly, the authority ordered in February 2019: The Group can no longer easily assign data collected on the services of its subsidiaries such as WhatsApp and Instagram to the user’s Facebook account. Users must consent to the merging of their data into a profile – and give their voluntary consent. The same should apply to the attribution of data that Facebook has collected on third party websites, for example by means of measurement and analysis tools.

BGH agrees with the competition authorities

The American company is taking action against this order in court. In the simplified procedure before the Federal Court of Justice (BGH), he argued, inter alia, that data aggregation is “beneficial” for users. Why shouldn’t Facebook be able to offer the “best possible” service?

But without success. From the cartel’s senate point of view, the group is abusing its dominant position. This leaves consumers no choice: they cannot opt ​​out of linking their data and use Facebook – with less personalized advertising. If you want to use the network, you must consent to the combination of your data.

Thus, the Federal Court of Justice has for the first time emphasized the economic importance of data in the social network market.

The decision is, however, preliminary. In the main proceedings, the Higher Regional Court of Düsseldorf (OLG) must first rule at first instance. And this has already seen the case differently from BGH in the simplified procedure. He is currently seeking protection from the ETS.

The ECJ has to clarify the jurisdiction.

This is possible because data protection is regulated uniformly throughout Europe in the General Data Protection Regulation. It is therefore for the ECJ to interpret this provision. The Higher Circuit Court now wants Luxembourg to clarify whether the Federal Antimonopoly Office is responsible at all, and not just the data protection authorities.

The Bonn office sees it this way: it is responsible when the collection and use of data becomes a “key factor” in a company’s competitive position. In addition, we work closely with data protection authorities. “Today, data is a decisive factor in competition,” Bundeskartellamt president Andreas Mundt said in 2019. “Especially for Facebook, they are even a key factor in the company’s dominance.”

Further questions to the Court

In addition, the ECJ should clarify whether free consent can be given to a parent company such as Facebook.

And: can Facebook justify combining data with other “legitimate interests” – such as providing analytics to advertisers, marketing, or research and innovation for social purposes?

The Bundeskartellamt is not allowing pending legal proceedings to stop it from taking other action against Meta: just last week it classified the group as a company of “exceptional inter-market importance to competition” and thus subjected it to tighter competition scrutiny.

Leave a Comment