In short, it means the reasonable fragmented trail you leave over the web can to some extent be followed and that the trail can be lead back to your social media presence. The Bundeslartellamt considered this exploitative of its users. In other words, the “price” was too high. The ruling required Facebook to remove this as a condition to use the platform, but added the company could continue the practice if it sort additional consent from users, though didn’t mention why users might give this extra consent.
“the reasonable fragmented trail you leave over the web can to some extent be followed and that the trail can be lead back to your social media presence.”
The case was the first of its kind to connect data collecting practices and the concept of exploitative abuse of a dominant undertaking. It did not stand for long though. Facebook successfully appealed the case before the Higher Regional Court in Düsseldorf in August. Where the Competition Authority had fell short was that it had not fully developed a Theory of Harm which, in competition terms means, how Facebook’s behaviour causes actual or potential harm to consumers and competitors. Rather, the Court noted that the services are not indispensable and users sign up voluntarily. Additionally they said the Bundeskartellamt had not considered the counterfactual, i.e what benefits are brought about the alternative situation of a paid-for service without the same data collection, and would consumers go for it. Finally, the Court states that exploitative practices are about the company’s behaviour, and not the mind-set of the users. Quoting the judgement;
“there is no evidence that Facebook obtains the consent of users through coercion, pressure, exploitation of lack of willpower or otherwise unfair means […] whether the users act out of indifference or because they do not want to spend the necessary time and effort [to read the conditions] […] does not matter [as] their decision is ultimately free, uninfluenced and autonomous”.
Besides the consideration that competition policy is maybe not the most appropriate field for these cases, it leaves us with the discussion on whether personal data should be more protected in legislation or should be left to the users to “spend it” how they please. In light of big data and the scandals that have emerged so far, perhaps legislators should be more wary of what can happen when companies can accumulate so much so easily.
First published November 2019. Volume 15, Issue 1.