Karlsruhe (dpa) - In the future, Facebook will have to offer its users a choice when collecting and linking data from other Internet services.

The Federal Court of Justice (BGH) in Karlsruhe overturned a decision by the Higher Regional Court (OLG) in Düsseldorf, with which the enforcement of a corresponding ruling by the Bundeskartellamt had been postponed. The authority had prohibited the operator of the social network from requesting blanket consent from its users to collect and link data without offering the alternative of less extensive data use. (KVR 69/19)

The presiding judge of the cartel senate, Peter Meier-Beck, said on the grounds that there were no serious doubts about Facebook's dominant position in the German market for social networks, nor "that Facebook is abusing this dominant position with the terms of use prohibited by the cartel office ». It is abusive that Facebook does not give its users a choice: whether they want to use the network with more intensive personalization, which potentially has unlimited access to all data that has also been created outside of Facebook. Or whether you want personalization that is only based on data that you reveal on Facebook itself.

Contrary to what was assumed by the Cartel Office, according to the BGH judges it is not decisive whether the terms of use violate the General Data Protection Regulation (GDPR). There is also no fundamental antitrust ban on extended data use as long as there is a choice for the customer. This is also important for the competition.

The Facebook lawyer had argued in vain during the trial that the use of so-called off-Facebook data was a great advantage for customers. This would make Facebook a better product. He also highlighted the significant economic ramifications that an immediate implementation of the order would have.

Facebook offers its users, among other things, advertising tailored specifically for them. The basis for this is, for example, other websites visited or the use of the Like button. Data from WhatsApp and Instagram are also merged with Facebook.

The President of the Cartel Office, Andreas Mundt, was satisfied with the decision. Data is a crucial factor for economic power and for the assessment of market power on the Internet. “The decision gives us important pointers on how we should deal with data and competition. If data is collected and used illegally, an antitrust intervention must be possible to prevent the abuse of market power. »

A Facebook spokesman emphasized that the main proceedings before the court of appeal had not yet been completed. "We will continue to defend our position that there is no abuse under antitrust law." There would be no immediate changes for the people or companies that use Facebook products and services in Germany.

From the point of view of the competition law expert Prof. Rupprecht Podszun from the Heinrich Heine University Düsseldorf, the decision is a spectacular success for the Federal Cartel Office and an important signal for competition on the Internet. The Facebook case is considered a pioneer case worldwide. However, Facebook has the opportunity to have the decision examined again in the main proceedings.

© dpa-infocom, dpa: 200623-99-538705 / 2

Decision of the Higher Regional Court

Notice from the Federal Cartel Office in February 2019