{"id":14168,"date":"2019-02-07T11:48:55","date_gmt":"2019-02-07T11:48:55","guid":{"rendered":"https:\/\/rsoftsolution.com\/blog\/german-antitrust-office-limits-facebooks-data-gathering.html"},"modified":"2019-02-07T11:48:55","modified_gmt":"2019-02-07T11:48:55","slug":"german-antitrust-office-limits-facebooks-data-gathering","status":"publish","type":"post","link":"https:\/\/www.rbsitsoftwaresolution.in\/blog\/german-antitrust-office-limits-facebooks-data-gathering.html","title":{"rendered":"German antitrust office limits Facebook\u2019s data-gathering"},"content":{"rendered":"

A lengthy antitrust probe into how Facebook <\/a> gathers data on users has resulted in Germany\u2019s competition watchdog banning the social network giant from combining data on users across its own suite of social platforms without their consent.<\/p>\n

The investigation of Facebook data-gathering practices began in March 2016.<\/p>\n

The decision by Germany\u2019s Federal Cartel Office, announced today<\/a>, also prohibits Facebook from gathering data on users from third party websites \u2014 such as via tracking pixels and social plug-ins \u2014 without their consent.<\/p>\n

Although the decision does not yet have legal force and Facebook has said it\u2019s appealing. The BBC<\/a> reports that the company has a month to challenge the decision before it comes into force in Germany.<\/p>\n

In both cases \u2014 i.e. Facebook collecting and linking user data from its own suite of services; and from third party websites \u2014 the\u00a0Bundeskartellamt asserts that consent to data processing must be voluntary, so cannot be made a precondition of using Facebook\u2019s service.<\/p>\n

The company must therefore \u201cadapt its terms of service and data processing accordingly\u201d, it warns.<\/p>\n

\u201cFacebook\u2019s terms of service and the manner and extent to which it collects and uses data are in violation of the European data protection rules to the detriment of users. The Bundeskartellamt closely cooperated with leading data protection authorities in clarifying the data protection issues involved,\u201d it writes, couching\u00a0Facebook\u2019s conduct as \u201cexploitative abuse\u201d. <\/span><\/p>\n

\u201cDominant companies may not use exploitative practices to the detriment of the opposite side of the market, i.e. in this case the consumers who use Facebook. This applies above all if the exploitative practice also impedes competitors that are not able to amass such a treasure trove of data,\u201d it continues. <\/span><\/p>\n

\u201cThis approach based on competition law is not a new one, but corresponds to the case-law of the Federal Court of Justice under which not only excessive prices, but also inappropriate contractual terms and conditions constitute exploitative abuse (so-called exploitative business terms).\u201d<\/span><\/p>\n

Commenting further in a statement, Andreas Mundt, president of the Bundeskartellamt, added: \u201cIn future, Facebook will no longer be allowed to force its users to agree to the practically unrestricted collection and assigning of non-Facebook data to their Facebook user accounts. <\/span><\/p>\n

\u201cThe combination of data sources substantially contributed to the fact that Facebook was able to build a unique database for each individual user and thus to gain market power. In future, consumers can prevent Facebook from unrestrictedly collecting and using their data. The previous practice of combining all data in a Facebook user account, practically without any restriction, will now be subject to the voluntary consent given by the users. <\/span><\/p>\n

\u201cVoluntary consent means that the use of Facebook\u2019s services must not be subject to the users\u2019 consent to their data being collected and combined in this way. If users do not consent, Facebook may not exclude them from its services and must refrain from collecting and merging data from different sources.\u201d<\/span><\/p>\n

\u201cWith regard to Facebook\u2019s future data processing policy, we are carrying out what can be seen as an internal divestiture of Facebook\u2019s data,\u201d\u00a0Mundt added.\u00a0<\/span><\/p>\n

Facebook has responded to the Bundeskartellamt\u2019s decision with a blog post<\/a> setting out why it disagrees. The company did not respond to specific questions we put to it.<\/p>\n

One key consideration is that Facebook also tracks non-users via third party websites. Aka, the controversial issue of \u2018shadow profiles\u2019 \u2014 which both US<\/a> and EU<\/a> politicians questioned founder Mark Zuckerberg about last year.<\/p>\n

Which raises the question of how it could<\/em> comply with the decision on that front, if its appeal fails, given it has no obvious conduit for seeking consent from non-users to gather their data. (Facebook\u2019s tracking of non-users has already previously been judged illegal<\/a> elsewhere in Europe.)<\/p>\n

The German watchdog says that if Facebook intends to continue collecting data from outside its own social network to combine with users\u2019 accounts without consent it \u201cmust be substantially restricted\u201d, suggesting\u00a0a number of different criteria are feasible \u2014 such as restrictions including on the amount of data; purpose of use; type of data processing; additional control options for users; anonymization; processing only upon instruction by third party providers; and limitations on data storage periods.<\/p>\n

Should the decision come to be legally enforced, the\u00a0Bundeskartellamt says Facebook will be obliged to develop proposals for possible solutions and submit them to the authority which would then examine whether or not they fulfil its requirements.<\/p>\n

While there\u2019s lots to concern Facebook in this decision \u2014 which, it recently emerged, has plans to unify the technical infrastructure of its messaging platforms<\/a>\u00a0\u2014 it\u00a0isn\u2019t all bad for the company. Or, rather, it could have been worse.<\/p>\n

The authority makes a point of saying the social network can continue to make the use of each of its messaging platforms subject to the processing of data generated by their use, writing: \u201cIt must be generally acknowledged that the provision of a social network aiming at offering an efficient, data-based business model funded by advertising requires the processing of personal data. This is what the user expects.\u201d<\/p>\n

Although it also does not close the door on further scrutiny of that dynamic, either under data protection law (as indeed, there is a current challenge to so called \u2018forced consent<\/a>\u2018\u00a0under Europe\u2019s GDPR); or indeed under competition law.<\/p>\n

\u201cThe issue of whether these terms can still result in a violation of data protection rules and how this would have to be assessed under competition law has been left open,\u201d it emphasizes.<\/p>\n

It also notes that it did not investigate how Facebook subsidiaries WhatsApp <\/a> and Instagram collect and use user data \u2014 leaving the door open for additional investigations of those services.<\/p>\n

On the wider EU competition law front, in recent years the European Commission\u2019s <\/a> competition chief has voiced concerns about data monopolies<\/a> \u2014 going so far as to suggest, in an interview with the BBC<\/a> last December, that restricting access to data might be a more appropriate solution to addressing monopolistic platform power vs breaking companies up.<\/p>\n

In its blog post rejecting the German Federal Cartel Office\u2019s decision, Facebook\u2019s Yvonne Cunnane, head of data protection for its international business, Facebook Ireland, and\u00a0Nikhil Shanbhag, director and associate general counsel, make three points to counter the decision, writing that: \u201cThe Bundeskartellamt underestimates the fierce competition we face in Germany, misinterprets our compliance with GDPR and undermines the mechanisms European law provides for ensuring consistent data protection standards across the EU.\u201d<\/p>\n

On the competition point, Facebook claims in the blog post that \u201cpopularity is not dominance\u201d \u2014 suggesting the\u00a0Bundeskartellamt found 40 per cent of social media users in Germany don\u2019t use Facebook. (Not that that would stop Facebook from tracking those non-users around the mainstream Internet, of course.)<\/p>\n

Although, in its announcement of the decision today, the Federal Cartel Office emphasizes that it\u00a0found Facebook to have a dominant position in the Germany market \u2014 with (as of December 2018) 23M daily active users and 32M monthly active users, which it said constitutes a market share of more than 95 per cent (daily active users) and more than 80 per cent (monthly active users).<\/span><\/p>\n

It also says it views social services such as Snapchat, YouTube and Twitter, and professional networks like LinkedIn <\/a> and Xing, as only offering \u201cparts of the services of a social network\u201d \u2014 saying it therefore excluded them from its consideration of the market.<\/p>\n

Though it adds that \u201ceven if these services were included in the relevant market, the Facebook group with its subsidiaries Instagram <\/a> and WhatsApp would still achieve very high market shares that would very likely be indicative of a monopolisation process\u201d.<\/p>\n

The mainstay of Facebook\u2019s argument against the Bundeskartellamt decision appears to fix on the GDPR \u2014 with the company both seeking to claim it\u2019s in compliance with the pan-EU data-protection framework (although its business faces multiple complaints<\/a> under GDPR), while simultaneously arguing that the privacy regulation supersedes regional competition authorities.<\/p>\n

So, as ever,<\/a> Facebook is underlining that its regulator of choice is the Irish Data Protection Commission.<\/p>\n

\u201cThe GDPR specifically empowers data protection regulators \u2013 not competition authorities \u2013 to determine whether companies are living up to their responsibilities. And data protection regulators certainly have the expertise to make those conclusions,\u201d Facebook writes.<\/p>\n

\u201cThe GDPR also harmonizes data protection laws across Europe, so everyone lives by the same rules of the road and regulators can consistently apply the law from country to country. In our case, that\u2019s the Irish Data Protection Commission. The Bundeskartellamt\u2019s order threatens to undermine this, providing different rights to people based on the size of the companies they do business with.\u201d<\/p>\n

The final plank of Facebook\u2019s rebuttal focuses on pushing the notion that pooling data across services enhances the consumer experience and increases \u201csafety and security\u201d \u2014 the latter point being the same argument Zuckerberg used last year to defend \u2018shadow profiles\u2019 (not that he called them that) \u2014 with the company claiming now that it needs to pool user data across services to identify abusive behavior online; and disable accounts link to\u00a0terrorism; child exploitation; and election interference.<\/p>\n

So the company is essentially seeking to leverage (you could say \u2018legally weaponize\u2019) a smorgasbord of antisocial problems many of which have scaled to become major societal issues in recent years, at least in part as a consequence of the size and scale of Facebook\u2019s social empire, as arguments for defending the size and operational sprawl of its business. Go figure.<\/p>\n

In a statement provided to us last month ahead of the ruling, Facebook also said:\u00a0\u201cSince 2016, we have been in regular contact with the Bundeskartellamt and have responded to their requests. As we\u00a0outlined publicly in 2017<\/a>, we disagree with their views and the conflation of data protection laws and antitrust laws, and will continue to defend our position.\u201d<\/span>\u00a0<\/span><\/p>\n

Article source: http:\/\/feedproxy.google.com\/~r\/techcrunch\/social\/~3\/RZYGuNOIktA\/<\/p>","protected":false},"excerpt":{"rendered":"

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