At the moment we are constantly receiving inquiries from Internet users who are administrators of GROUPS and PAGES on Facebook.

The European Court of Justice (ECJ) ruled on May 5, 2018 that the operators or administrators of Facebook pages cannot leave the data protection of their users to Facebook alone. According to the judges in Luxembourg, operators are jointly responsible for data protection and are therefore potentially liable for violations. We reported about it here .

The question is: “Do you have to close your group and/or page on Facebook now?”

Our answer:

be able to legally operate a Facebook page (and, most likely, a Facebook group) on Facebook lawyer Anja Neubauer, for example, Facebook itself would have to create a way to display a privacy policy to users that explains it in detail which data is required or collected for what purpose. And this applies to every single Facebook page and every single Facebook group.

The only currently legally compliant solution would be to delete your page and/or group – or at least set it to “not visible”. This would be exactly the solution at the moment if you are very unsure and really want to avoid any legal attack. However, you also have to consider the consequences for the virality of your content.

What does this mean for the operators of such pages and groups?

The currently only legally compliant solution of deleting your page and/or group - or at least setting it to "not visible" - of course eliminates all legal uncertainties. Until the point at which Facebook offers operators and users the opportunity, or rather an option, with which the storage of data can be excluded, as is also the case with websites that are outside from Facebook.

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Administrators of Facebook pages and Facebook groups are currently facing the full force of data protection law!

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At the moment, only Facebook ALONE has access to the respective personal data. Operators of Facebook pages and Facebook groups only see a summary of the data in their statistics, as anonymous data. However, there is also a lack of information provided to the user when they enter a site, which the site operators have no influence on, but can still be held jointly responsible for.

Does the ruling also apply to private individuals?

In a very detailed and informative FAQ, Allfacebook.de describes, among other things, that data protection law does not differentiate between private individuals and a company.

Data protection law does not apply only to “exclusively personal and family activities”. However, this can only be assumed for personal Facebook profiles that are only aimed at friends and family (although some lawyers deny this and therefore there would also be joint liability for these profiles).

GDPR AND ECJ!

Does the ruling also apply under the GDPR?

The ECJ decided on the interpretation of the data protection directive (Directive 95/46/EC, there Art. 2 lit. d., 4 and 28). However, the GDPR also regulates that there can be several persons responsible for processing data if they can each determine the means and purposes of data processing ( Art. 4 No. 7 Sentence 1 GDPR):

“Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, decides on the purposes and means of processing personal data; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law;

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This is also the reason why the decision could also be transferred to the GDPR!

What now? Should I close my Facebook page or Facebook group?

If you really don't want to take any risks (not even that of a warning from a warning lawyer), then only this one step remains. Then you should also think about whether you should close your profiles or pages on all other platforms in the same way.

If you are an entrepreneur, then you simply have to carry out a risk assessment and weigh up whether you want to take the risk of a warning or not, or whether closing the site and the resulting loss of earnings will cost more than a possible warning.

Note on your own behalf:

At this point we would like to refer to experts who have different views on this topic. In other words: Even experts themselves don't always and everywhere agree at the moment and give different advice.

We looked through a large number of publications, and it is very interesting to note that, for example, Dr. Thomas Schwenke is of the opinion that the ECJ ruling is not a reason to close his Facebook page, whereas the lawyer Anja Neubauer is of the opinion that one should delete his Facebook page or at least set it to “not visible”, because it is currently the only logical consequence.

This is where the real problem of the current situation becomes apparent: legal uncertainty! Users are left out in the cold. In our opinion, legislation and case law are currently working, on the one hand, far removed from real practice, but on the other hand, they are also working on the backs of users of social networks in order to get the network operators to give in.

There is a very appropriate paragraph in an article from the ARD Tagesschau

What does the ruling mean specifically for operators of fan sites?

The honest answer is: This cannot yet be conclusively answered. The ECJ has decided that Facebook and the site operator are jointly responsible for data protection. This statement alone justifies the category “fundamental judgment”.

However, the ECJ has not decided that fan pages violate data protection law in terms of content. Therefore, it is not yet possible to say exactly what information a site operator may have to include for users in the future. The ECJ also points out in the reasons for the judgment that “joint” does not necessarily mean “50:50” responsibility. It will also be interesting to see how Facebook reacts to the ruling.

This means: Many follow-up questions are still open. Before you switch off a page, you should know that the legal proceedings are still ongoing and that the data protection authorities will certainly take a close look at how the case is ultimately decided.

Not a good situation!


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Notes:
1) This content reflects the current state of affairs at the time of publication. The reproduction of individual images, screenshots, embeds or video sequences serves to discuss the topic. 2) Individual contributions were created through the use of machine assistance and were carefully checked by the Mimikama editorial team before publication. ( Reason )