The German FCO’s Facebook Case: Blurring The Line Between Competition And Data Protection Enforcement

By Jakob Kucharczyk, Project DisCo

This week Germany’s Bundeskartellamt, the Federal Cartel Office (FCO), made the news by issuing a decision against Facebook for the alleged abuse of market power “based on the extent of collecting, using and merging data in a user account”. In concrete terms, the FCO takes issue with Facebook merging user data from Facebook-owned properties like WhatsApp and Instagram as well as from third-party websites with a person’s Facebook user account. It ordered Facebook to stop that practice unless users give Facebook their “voluntary consent”. The FCO considers the combining of Facebook data with ‘non-Facebook’ data an exploitative abuse because users have to agree to what FCO President Andreas Mundt refers to as a “practically unrestricted collection” of non-Facebook data if they want to use the service.

This case is set to raise many questions in the competition community but certainly the most striking aspect of the decision is that it is entirely based on an alleged infringement of European data protection rules enshrined in the General Data Protection Regulation (GDPR). The FCO states that Facebook’s “terms of service and the manner and extent to which it collects and uses data are in violation of the European data protection rules”. It is remarkable for a competition authority to determine whether there was a breach of data protection rules given that there are specialized agencies tasked with making precisely that call. Making that call in the context of a competition investigation is equal to saying that because a company is dominant it is more likely to use its market power to impose terms and conditions on its users that are in breach of data protection rules.

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