"The distinction between the past, present and future is only a stubbornly persistent illusion." A. Einstein
The popular TV series, Dark, begins with an Einstein phrase: "The distinction between the past, present and future is only a stubbornly persistent illusion." (Der Unterschied zwischen Vergangenheit, Gegenwart und Zukunft ist nur eine Illusion, wenn auch hartnäckige).
Recent developments within the scope of the Facebook file are also a revolution in terms of competition law and data protection law. The debates on today's agenda will determine the changing content of the future digital economy, big data, and competition law.
With the decision of the Federal German Cartel Office ("Cartel Office") dated 6.2.2019, Facebook's data collection activities were thoroughly examined. The Cartel Office found that Facebook dominated the Federal German market in terms of social media platforms, and detected that it abused its dominant position in the scope of data collection activities. Therefore, an issue that could be subject to data protection law has also been considered as a competition law problem. This resulted in a new type of violation in terms of competition law.
The Facebook Decision of the Cartel Office
In accordance with the general terms and conditions provided by Facebook, users could only benefit from the social networking services provided by the undertaking on the condition that they accept the Facebook data processing policy. In addition to users' data, such as Instagram and WhatsApp, Facebook, as a third party, was processing data from non-Facebook web pages and applications. By combining all of this data, almost a complete Facebook user data system had been created.
The decision of the Cartel Office basically examines whether Facebook's data collection activities should be considered as a violation of competition or not. For this purpose, it was firstly determined whether Facebook is in a dominant position. In calculating Facebook's market share, the Cartel Office made a distinction between daily active users and monthly active users. In 2018, Facebook had 1.52 billion daily active users and 2.32 billion monthly active users, worldwide.1
The Cartel Office found that Facebook dominates the social network market in Federal Germany. In terms of the German market, Facebook has a market share of approximately 95%, with 23 million daily, and 32 million monthly, users. Competitive social networks, such as Google+...