Competition and Privacy in the Digital Age : The Legal Implications of the German Antitrust Office’s Facebook Decision

This thesis aims to study in depth the the German Antitrust Office’s (Bundeskartellamt) decision that was published in February 2019 in order to answer the main research questions, which are; could the case be a template for the rest of the Europe too? What implications the case has for the future of privacy/data and competition law? Bundeskartellamt released an initial press release in 2016 regarding the investigation on whether Facebook has abused its dominant position in the market of social networking platforms by infringing data protection rules with its terms and conditions. In February 2019 the Bundeskartellamt prohibited Facebook Inc., Menlo Park, USA, Facebook Ireland Ltd., Dublin, and Facebook Germany GmbH, Hamburg, Germany from making the use of Facebook social network conditional on the collection of user and device-related data and combining that information with the Facebook.com user account without users’ consent. Furthermore, the consent given was not effective according to the General Data Protection Regulation (GDPR). The decision applied German law and the GDPR but in order to answer the research questions, also the Treaty on the Functioning of the European Union (TFEU) rules will be applied. The conclusion of the research is that the rest of the EU could apply TFEU in order to establish that Facebook has indeed a dominant position in the EU too regarding the social network market and it has abused its market position with the terms and conditions it has imposed to its consumers. These terms and conditions can be found abusive based on the argument that they are exploitative regarding the excessive price (data) they impose for the use of the social network platform and because the users were not fully informed by this price. As a dominant company, Facebook has a special obligation not to violate competition regulations and therefore it should have paid special attention to make sure that the terms and conditions are fair and not exploitative but also readable and understandable for the user. Moreover, as the user has difficulties to understand what he or she is consenting to, the consent cannot be regarded as given voluntarily pursuant to the GDPR. As this research involves several fields of law, this thesis will also examine the interplay between data protection provision, consumer protection and competition law generally. Finally, the future of Facebook and the relationship between big data, privacy, data protection and competition law will be assessed. The German case has implications on the future because it was the first time competition authority decided of an abuse of dominant position applying the GDPR. The link between competition law application on data/privacy matters is established and therefore the future will require clear guidelines on how cases like these are divided between the data protection and competition authorities. Companies will have to pay more attention to their terms and conditions and more awareness must be raised amongst consumers.