On 14 February, the Schleswig-Holstein Administrative Court granted the applications of Facebook USA and the European subsidiary Facebook Ireland in two proceedings for interim legal protection.
With the applications, Facebook had sought the restoration of the suspensive effect of its objections against two decisions of 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) when registering. For users who had obtained an account and did not provide their correct names when registering, Facebook blocks their accounts and makes the unblocking conditional on the presentation of a copy of an official photo ID for identification.
The notices, based on the Federal Data Protection Act and the Telemedia Act, ordered Facebook to give its users the option of entering pseudonyms instead of real data when registering. Furthermore, Facebook was ordered to unblock the data that had been blocked due to the failure to provide real data or the incomplete provision of real data. In case of non-compliance, a penalty payment of 20,000 euros was threatened. Facebook had filed an objection against the notices and an application for restoration of the suspensive effect.
In its decisions, the Administrative Court restored the suspensive effect in both proceedings and explained its reasons: In the summary examination to be carried out 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 is carried out by a branch in another Member State of the European Union. This was the case here: Facebook Ltd Ireland, with the staff and facilities available there, fulfilled all the requirements of a branch in this sense, with the result that only Irish data protection law applied. Facebook Germany GmbH, on the other hand, was exclusively active in the field of advertising acquisition and marketing. Therefore, both the unblocking order and the threat of a penalty payment were unlawful.
An appeal against the decisions of 14 February 2013 can be lodged with the Higher Administrative Court within two weeks of notification (Ref.: 8 B 60/12 and 8 B 61/12).
Source: Press release of the Schleswig-Holstein Administrative Court
Goldberg Attorneys at Law 2013
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
