The VZBV (Federal Consumer Association) has sued Facebook for violations of consumer and data protection rights. Now the verdict is in.

The most important thing about the court ruling in brief

1. Default settings for the use of personal data do not constitute informed consent.
2. Court confirms consumer associations' right to sue in the event of data protection violations.
3. Advertising with “Facebook is and remains free” is permitted.

Court ruling: Facebook violates consumer and data protection law with privacy preferences and part of its terms and conditions. This includes a clause about using the profile picture for commercial purposes and the default activation of a location service that reveals the whereabouts to chat partners. This was decided by the Berlin Court of Appeal following a lawsuit by the Federal Association of Consumer Organizations (vzbv). The vzbv can therefore take legal action in the event of violations of the General Data Protection Regulation (GDPR). However, according to the Chamber Court, the advertising slogan “Facebook is and remains free” is not misleading. The judges thus confirmed a ruling by the Berlin Regional Court from January 2018.

“It is not the first time that Facebook has been condemned for its careless handling of its users’ data,” says Heiko Dünkel from the legal enforcement team at vzbv. “The Chamber Court made it clear that consumer advice centers can take action against violations of the GDPR.”

Privacy settings already ticked

In its lawsuit, the vzbv complained about a total of 26 individual violations. The Chamber Court followed the association's legal opinion on many points. A location service was already activated in the Facebook app for mobile phones, which reveals your whereabouts to chat partners. In the privacy settings, a tick was preset so that search engines would receive a link to the participant's timeline. This makes your Facebook profile quick and easy to find for everyone. According to the court, the necessary consent to use data cannot be given via a pre-set checkbox that the user must first deselect if they do not agree.

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The court also prohibited a number of terms and conditions.
Users agreed that Facebook could use their name and profile picture “for commercial, sponsored or related content” and forward all data to the USA. Another clause stated that they agreed in advance to any future changes to Facebook's data policy. In the Senate's opinion, such pre-formulated declarations do not meet the requirements for effective consent to the use of data. A clause that, among other things, required users to provide their real names has already been legally prohibited by the company following a partial withdrawal of its appeal in December 2019.

There is no doubt about the vzbv’s standing to sue

The Court of Appeal made it clear that the vzbv is entitled to legally prosecute data protection violations by companies even after the GDPR comes into force. Corresponding rights of action in the Injunctions Act and the Act against Unfair Competition are applicable. This does not require the order of an affected consumer.

Advertising “Facebook is and remains free” remains permissible

However, the slogan “Facebook is and remains free” is permissible according to the Chamber Court ruling. The vzbv had criticized the advertising as misleading because consumers had to pay for Facebook usage indirectly with their data, which Facebook uses to make its profit. According to the Court of Appeal, however, the advertising only refers to the fact that the services can be used without any monetary payments or other financial losses. The Senate also dismissed the lawsuit against individual clauses in the company's data policy. These are not general terms and conditions.

An appeal against the judgment is not permitted. However, both parties still have the opportunity to lodge an appeal against non-admission with the Federal Court of Justice.

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Download: Court ruling of the Chamber Court of December 20, 2019, Ref. 5 U 9/18 - not legally binding PDF 8.23 ​​MB
Further information: The vzbv against Facebook, Facebook violates German data protection law.
Related to the topic: Passing on user data by Facebook


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Notes:
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