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Facebook Case: The Reasoning

 |  August 28, 2020

By: Rupprecht Podszun (D’Kart)

If the Bundesgerichtshof (BGH) had an Instagram account (it does not, oh mama mia) this would have made for a spectacular countdown from the ruling to the publication of the reasoning. Every influencer would have loved to have such an opportunity to keep followers in suspense: If Justin Bieber publishes a new song or some muscle monster a new photo of a close-to-explosion biceps, users are usually fed steadily to insanity before the song or photo is finally published. The BGH remained silent ever since it ruled on Facebook on 23 June 2020. Yet it has one thing in common with that Instagram muscle monster: Both once in a while flex their muscles. The difference is that the court has real influence.

In June, the Competition Senate – after a hearing – declared that it was siding with the Bundeskartellamt in the Facebook data case. All we got then was an oral statement by the Senate’s Chief Judge Peter Meier-Beck (who is – full disclosure – an honorary professor at Heinrich Heine University Düsseldorf) and a press release. Both sources of information fired our imagination, and so Daniela Seeliger and I speculated in this blog here and here on the reasoning behind the judgement. I tended to think that this ruling may establish a significant re-adjustment of competition policy with a stronger focus on consumer choice and the sovereignty of users to decide for themselves.

Now, let’s see what the Court was really thinking. You find the decision in German language here. Before we start (and this is a lengthy post), let me just say that the decision really has some very, very, very interesting aspects (read through to the end since I go through the case in chronological order)…