On February 14, the Administrative Court of Schleswig-Holstein granted the applications of Facebook USA and its European branch, Facebook Ireland, in two preliminary injunction proceedings.
With these applications, Facebook sought the restoration of the suspensive effect of its objections against two orders issued by the Independent Centre for Data Protection (ULD) Schleswig-Holstein. Facebook requires its users to provide their true data (first name, last name, email address, gender, and date of birth) upon registration. For users who had received an account but did not provide their correct names during registration, Facebook blocks their accounts and makes unblocking contingent on the submission of a copy of an official photo ID for identification.
The orders, based on the Federal Data Protection Act and the Telemedia Act, had required Facebook to grant its users the option to provide pseudonyms instead of real data during registration. Furthermore, Facebook was ordered, with immediate enforceability, to unblock the data that had been blocked due to the non-provision or incomplete provision of real data. A penalty payment of €20,000 was threatened in case of non-compliance. Facebook had lodged an objection against the orders and filed an application for the restoration of their suspensive effect.
The Administrative Court, in its decisions in both proceedings, reinstated the suspensive effect and stated in its reasoning: In the summary review to be conducted here, the order to unblock the accounts proved to be unlawful. The Data Protection Centre had wrongly based its order on German data protection law. However, this was not applicable. According to the European Data Protection Directive and the Federal Data Protection Act, German law does not apply if the collection and processing of personal data takes place through an establishment in another Member State of the European Union. This was the case here: Facebook Ltd. Ireland, with its personnel and facilities located there, met all the requirements of an establishment in this sense, with the consequence that only Irish data protection law was applicable. Facebook Germany GmbH, on the other hand, was exclusively active in the areas of advertising acquisition and marketing. Therefore, both the order to unblock and the threat of a penalty payment were unlawful.
An appeal against the decisions of 14 February 2013 may be lodged with the Higher Administrative Court within two weeks of their promulgation (File Nos.: 8 B 60/12 and 8 B 61/12).
Source: Press release of the Schleswig-Holstein Administrative Court
Goldberg Attorneys at Law 2013
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
