The German Competition Authority (“Bundeskartellamt”) had previously found Meta (formerly Facebook) responsible for abusing its dominant position in the social network market by collecting and processing the personal data of its users without their consent and imposed measures on Meta and its associated undertakings from continuing to use it. The case rapidly resonated in the antitrust realm as it was the first time a competition authority had based an abuse of dominance finding on a violation of data protection rules. Recently, the long-awaited opinion of Advocate General Rantos of the European Court of Justice (“ECJ”) (“Opinion”), which lays down a marker for the implementation of data protection rules in competition law, was delivered on 20.09.2022. As the Opinion casts light on key points stemming from the intersection between the General Data Protection Regulation (“GDPR”) and competition law, the Opinion and its potential effects on competition law will be discussed in this article.
Background
The proceedings against Meta date back to 2016, when the Bundeskartellamt investigated Meta’s dominant position in the social network market and its terms of service on the use of user data to find out if Meta’s conditions were in violation of data protection provisions. Bearing in mind that not every law infringement action brought against a dominant company is relevant under competition law, the gist of the investigation rested on the suspicion that Meta’s use of its terms of service could pose an abusive imposition of unfair conditions on its users residing in Germany. The “take it or leave it” nature of its terms of service allowed Facebook to collect data on its users and their devices from Facebook’s corporate services (i.e. WhatsApp and Instagram), as well as from sources outside of a user’s Meta related-activities (via Facebook Business Tools) and merge it with user data from the Facebook social network. Meta argued that it has a legitimate interest in collecting and processing such data, required in order to provide its services.
