This month’s CLIP is a comment from Assistant Professor John Newman on the German Competition Authority’s (BKA) recent Facebook Decision regarding its use of user data (see here and here). Importantly, he highlights that the harm identified in the Decision seems more like a breach of privacy than a competition law issue. Here at the CLIP Board we wonder if the BKA’s approach will set a trend for other national authorities.

In February 2019 the BKA found that Facebook had abused its dominant position on the markets for social networks, with a market share of more than 95% (daily active users) and more than 80% (monthly active users). “According to Facebook’s terms and conditions users have so far only been able to use the social network under the precondition that Facebook can collect user data also outside of the Facebook website in the internet or on smartphone apps and assign these data to the user’s Facebook account. All data collected on the Facebook website, by Facebook-owned services such as e.g. WhatsApp and Instagram and on third party websites can be combined and assigned to the Facebook user account” (see here).

The BKA imposed a number of conditions on Facebook’s use of user data:

1. 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.
2. 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.

The Decision reflects the importance attributed to non-financial parameters of competition for antitrust enforcement, such as privacy and data protection, in an environment in which many online platforms’ offerings are nominally “free”. While it is clear that price is not the only parameter of competition, Assistant Professor Newman questions whether antitrust is the most appropriate tool for tackling these issues.

Noel Watson-Doig