Germany’s Federal Court of Justice confirms Facebook's abuse of market power

Germany’s Federal Cartel Office (FCO, Bundeskartellamt) decision on Facebook (PL&B International Report December 2019) that relates to both competition law and privacy was confirmed by the Federal Court of Justice (BGH) on 23 June.

The FCO had said that merging user data from different sources (Facebook, WhatsApp, Instagram) without explicit consent was an abuse of market power by Facebook and in breach of the GDPR.

Following an appeal, the BGH has now ruled in favour of the FCO, Oppenhoff and Partner reports. ‘Interestingly, the BGH does not base its decision on an infringement of the GDPR, as the FCO had done. Rather, it justifies the abuse on the grounds that Facebook’s terms and conditions do not leave the users any freedom to choose. The users would have to have the choice between:

  1. personalizing the network exclusively on the basis of the data disclosed on or
  2. more intensive personalization with the addition of "off-facebook" (on third party sites) collected data.’

The BGH is of the view that a dominant position of Facebook in a market for online advertising does not need to be determined :

‘It remains to be seen whether the Düsseldorf Higher Regional Court will follow the view of the BGH in the pending main proceedings ….. A further appeal to the Federal Court of Justice (after the decision in the main action) or a referral to the European Court of Justice would therefore not be unexpected.’

See Oppenhoff - German Federal Supreme Court confirms Facebook's abuse of market power