CYIL vol. 12 (2021)

michal petr CYIL 12 (2021) [U]under the General Data Protection Regulation (GDPR) applicable since May 2018, the review of data processing policies showed that Facebook has no effective justification for collecting data from other company-owned services and Facebook Business Tools or for assigning these data to the Facebook user accounts. […] Also, Facebook did not obtain any effective consent for its processing of the data affected in this case . 44 The crucial question is whether competition law was supposed to remedy the problem; indeed, this was the first time that data protection assessments were applied to substantiate an infringement of competition law and the BKA “ was thus the first European competition authority to sanction data protection infringements by a dominant undertaking ”. 45 The BKA concluded that Facebook has a dominant position in the German social services market; the market definition is not undisputed and the assessment of dominance was affected by the peculiar provisions of German competition law concerning digital markets, 46 we will however focus here only on the issue of the putative abuse of dominance. As was already mentioned above, the BKA perceives the conduct in question as an exploitative abuse of dominance, harming in particular the final consumers: “ The damage for the users lies in a loss of control: They are no longer able to control how their personal data are used. They cannot perceive which data from which sources are combined for which purposes with data from Facebook accounts and used e.g., for creating user profiles ”. 47 According to the BKA, this violates the constitutionally protected right to information self-determination. 48 The access to data and its processing was also used to strengthen Facebook’s dominant position, as it “ gained a competitive edge over its competitors in an unlawful way and increased market entry barriers, which in turn secures Facebook’s market power towards end customers ”, 49 and to improve Facebook’s advertising activities. 50 We will further discuss whether this theory of harm is robust enough to substantiate a breach of competition law. 2. Competition Law and Data Protection The initiation of BKA’s proceedings with Facebook in 2016 intensified the debate of whether competition law can be used in such data privacy cases, 51 in particular, taking into of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). 44 BKA Background Information, p. 6. 45 BECHER, C. A Closer Look at the FCO’s Facebook Decision. European Competition and Regulatory Law Review , 2019 (2), p. 116. 46 In detail, ibid , p. 116 et seq. 47 BKA Background Information, p. 5. 48 Ibid . 49 BKA Case Summary, p. 11. 50 BKA Background Information, p. 5: “ Further competitive harm is caused for advertising customers and competitors in the advertising market which are faced with a dominant supplier of advertising space in social networks ”. 51 Arguing in favour of the BKA’s approach, see e.g. SCHNEIDER, G. Testing Art. 102 TFEU in the Digital Marketplace: Insights from the Bundeskartellamt’s investigation against Facebook. Journal of European Competition Law & Practice , 2018 (4), p. 3. For a more critical interpretation, see e.g., COLANGELO, G., MAGGIOLINO, M. Data Protection in Attention Markets: Protecting Privacy through competition? Journal of European Competition Law and Practice , 2017 (6), p. 363.

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