Germany’s competition probe into Facebook’s T&Cs, precedent or outlier?


The German Competition Authority (BKA) has opened an investigation into Facebook “on suspicion of having abused its market power by infringing data protection rules”.

The BKA’s press release indicates it is taking an expansive view of its competition law powers, “There is an initial suspicion that Facebook’s conditions of use are in violation of data protection provisions. Not every law infringement on the part of a dominant company is also relevant under competition law. However, in the case in question Facebook’s use of unlawful terms and conditions could represent an abusive imposition of unfair conditions on users”.

This attempt to use competition law, in order regulate privacy, appears to put the BKA in conflict with the European Commission’s position: that it that it has not yet found competition problems in relation to ‘big data’ and that of the Court of Justice of the European Union: “any possible issues relating to the sensitivity of personal data are not, as such, a matter for competition law”.

The BKA is also tacking in a different direction to the UK’s Competition and Markets Authority (CMA), which regards potentially unfair terms and conditions as a matter for enforcement under EU rules on unfair contractual terms, rather than competition law.

It is too soon to tell whether the BKA’s interventionist approach to data protection will be followed by other national competition authorities. Here at the CLIP Board we suggest this is unlikely, rather the BKA’s investigation may be better seen in the context of German’s troubled historical relationship to personal information. However, we do anticipate increased competition scrutiny of potential foreclosure concerns in relation to dominant platforms and access to proprietary data.