Top German Court Rules Facebook's Collection And Use Of Data From Third-Party Sources Requires 'Voluntary' Consent
from the oh-no,-not-more-pop-ups dept
Back at the end of 2017, Germany’s competition authority, the Bundeskartellamt, made a preliminary assessment that Facebook’s data collection is “abusive“. At issue was a key component of Facebook’s business model: amassing huge quantities of personal data about people, not just from their use of Facebook, WhatsApp and Instagram, but also from other sites. If a third-party website has embedded Facebook code for things such as the ‘like’ button or a ‘Facebook login’ option, or uses analytical services such as ‘Facebook Analytics’, data will be transmitted to Facebook via APIs when a user calls up that third party’s website for the first time. The user is not given any choice in this, and it was this aspect that the Bundeskartellamt saw as “abusive”.
After the preliminary assessment, in February 2019 the German competition authority went on to forbid Facebook from gathering information in this way without voluntary permission from users:
(i) Facebook-owned services like WhatsApp and Instagram can continue to collect data. However, assigning the data to Facebook user accounts will only be possible subject to the users’ voluntary consent. Where consent is not given, the data must remain with the respective service and cannot be processed in combination with Facebook data.
(ii) Collecting data from third party websites and assigning them to a Facebook user account will also only be possible if users give their voluntary consent.
If consent is not given for data from Facebook-owned services and third party websites, Facebook will have to substantially restrict its collection and combining of data. Facebook is to develop proposals for solutions to this effect.
Naturally, Facebook appealed against this decision, and the Düsseldorf Higher Regional Court found in its favor. However, as the New York Times reports, the Federal Court of Justice, which monitors compliance with the German constitution, has just reversed that:
On Tuesday, the federal court said regulators were right in concluding that Facebook was abusing its dominant position in the market.
“There are neither serious doubts about Facebook’s dominant position on the German social network market nor the fact that Facebook is abusing this dominant position,” the court said. “As the market-dominating network operator, Facebook bears a special responsibility for maintaining still-existing competition in the social networking market.”
Needless to say, Facebook vowed to fight on — and to ignore the defeat for the moment. The case goes back to the lower court to rule again on the matter, but after the Federal Court of Justice guidance, it is unlikely to be in Facebook’s favor this time. There is also the possibility that the case could be referred to the EU’s top court, the Court of Justice of the European Union, to give its opinion on the matter.
Assuming that doesn’t happen, the ruling could have a big impact not only on Facebook, but on all the other Internet giants that gather personal details from third-party sites without asking their visitors for explicit, voluntary permission. Although the ruling only applies to Germany, the country is the EU’s biggest market, and likely to influence what happens elsewhere in the region, and maybe beyond. One bad outcome might be even more pop-ups asking you to give permission to have your data gathered, and be tracked as you move around the Internet.