The Federal Competition Authority has issued its decision on the lawfulness of Facebook’s data processing. As its q&a document explains, you cannot extricate the interests of consumers, including their rights to privacy and data protection, from the responsibilities of dominant companies under competition law.
We have consistently supported competition authorities taking action to combat abuse of dominance in a market by means of exploitation of consumers (in accordance with Article 102 of the Treaty). We are therefore encouraged by this decision by the Bundeskartellamt.
This case is the tip of the iceberg – all companies in the digital information ecosystem that rely on tracking, profiling and targeting should be on notice.
Fundamental rights are at particular risk where companies become so powerful that they can determine their own means and purposes of data processing with little or no regard to the wishes and reasonable expectations of individuals or alternative approaches from would-be competitors.
Take it or leave “privacy policies”, opaque and unchallengeable practices like profiling and targeting and multiple obscure third-party agreements for data sharing are, for us, examples of exploitative abuse.
It is not necessary for competition authorities to enforce other areas of law; rather they need simply to identity where the most powerful undertakings are setting a bad example and damaging the interests of consumers. Data protection authorities are able to assist in this assessment. EU DPAs sitting in the EDPB have already offered their expertise in 2018. Dominant companies should set a good example which is then likely to be emulated by competitors in the market.
Partly to that end, the EDPS has facilitated dialogue and information sharing between competition, data protection and consumer protection authorities through the Digital Clearinghouse, which meets several times a year.
Powerful tech companies pose multiple challenges to lawmakers in Europe and elsewhere on many levels and vigorous enforcement of competition rules in the EU is one important element in addressing them. But further work, notably investigations by several EU DPAs, is still ongoing and we look forward to first decisions which we expect later this year.
