The Federal Cartel Office tries to limit the data collection of Facebook in Germany on the basis of competition law, but threatens to fail at the Higher Regional Court (OLG) Dusseldorf. The court's 1st Cartel Senate on Monday raised massive doubts about the contestants' argument. Therefore Facebook did not have to implement the instructions of the antitrust authorities for the duration of the complaint procedure, decided the court. The authority immediately announced an appeal to the Federal Court.
Among other things, the Federal Cartel Office had ordered in February that Facebook may link data from its own services Instagram and WhatsApp as well as from websites of other providers only with the Facebook account of the user, if he expressly allows. Facebook got twelve months to implement the orders, but went to court.
The company abused its dominant position for inadmissible contractual terms to the detriment of users and distorted competition, argued the Cartel Office. The authority assumes that Facebook in Germany is to be regarded as a monopolist and users before the choice to accept the data collection via external sources - or to dispense with the use of the dominant service.
Maybe a violation of privacy policy
However, the Higher Regional Court - like, of course, Facebook itself - has "serious doubts" and considers the Office's orders to be potentially illegal. "Contrary to the opinion of the Federal Cartel Office, the data processing by Facebook which it complains about does not cause any relevant damage to competition and also no unfair competition," said the court.
The data of the users are finally "duplicable easily, which is why their dedication to Facebook does not weaken the consumer economically," it says in the 37-page decision. Users could provide their data "as often as they like to third parties, including competitors of Facebook".
Even if the data processing objected to by the antitrust authorities violated data protection regulations, the court stated that it was not a violation of competition law at the same time.
It may take months to reach judgment in the main proceedings, and a final decision may be taken by the European Court of Justice.
Rupprecht Podszun, director of the Institute for Antitrust Law at the Heinrich Heine University in Düsseldorf, believes, however, that the proceedings are "dead with today's decision". Because it is "very unlikely" that comes out at the end of the main proceedings something completely different. It decides the same Senate: "The 37-page decision of the Higher Regional Court is not cautiously formulated, but very clearly directed against the position of the Cartel Office".