Facebook's "Like" button is illegal under competition law

In its judgement of 09.03.2016, Ref.: 12 O 151/15, the Regional Court of Düsseldorf ruled that the use of the Facebook "Like" plug-in was illegal under competition law.

Pursuant to Section 13 (1) sentence 1 of the German Telemedia Act (TMG), the operator of a teleservice must inform the user at the beginning of the usage process about the type, scope and purpose of the collection and use of personal data as well as about the processing of his or her data in states outside the scope of the EEA in a generally comprehensible form.

An internet site operator does not comply with this obligation to inform if he uses the Facebook "Like" button, as the Facebook "Like" button already collects usage data when visiting the website, i.e. data that is necessary to enable and bill for the use of teleservices. This also includes features to identify the user, such as the user's IP address. Another problem with the Facebook button is that it stores and transmits the data of website visitors to Facebook completely independently of whether the visitor has a profile on Facebook or not.

Since data is already transmitted to Facebook when the website is called up, even before a user of a website is informed about the collection of data, this circumstance constitutes a violation of data protection law in the opinion of the Düsseldorf Regional Court.

The website operator is also liable for this breach of data protection law, as he integrates the Facebook plug-in on his website. By integrating the plug-in, the website operator enables data collection and subsequent use of the data by Facebook.

Proper consent of all visitors to the website is also not given when using the Facebook plug-in.

Electronic consent requires that the user consciously and unambiguously gives his or her consent. This in turn requires an active action on the part of the user, such as ticking a checkbox. Moreover, consent is only permissible if it is based on the free decision of the data subject and he or she is informed of the intended purpose of the collection, processing or use of the data and, if applicable, of the consequences of refusing consent. Consequently, this means that effective consent is only possible if the user gives consent voluntarily and is fully and comprehensively informed about what data will be collected, when and for what purpose. The consent of the data processing must consequently also precede the data processing and may not only be given afterwards.

However, since data is already collected when the Facebook plug-in is used when the website is visited, no effective consent can be given prior to the transfer of data in accordance with the above requirements.

This infringement of the provisions of Sections 12, 13, 15 of the German Telemedia Act (TMG) in conjunction with Section 3 a of the German Unfair Competition Act (UWG) constitutes a significant data protection infringement under competition law.

Whether the so-called "2-click solution" available on many websites is permissible under data protection law and thus under competition law was expressly not assessed by the Düsseldorf Regional Court. The so-called "2-click solution" is considered by parts of the literature to be a legally permissible way to integrate social media plug-ins, in particular the social media plug-in from Facebook, on a website.

However, other voices in the literature also consider the "2-click solution" to be legally impermissible. In this respect, it is argued that consent always presupposes that the person giving consent is aware of what data is collected, stored and used, for what purpose and to what extent. However, since Facebook does not disclose the type and scope of data collection and use, this circumstance could indeed preclude effective consent.

In order to safely avoid competition law warnings, website operators should therefore refrain from integrating the Like button provided by Facebook or a corresponding social media plug-in from Facebook on their website.

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Goldberg Lawyers 2016

Michael Ullrich, LL. M.(Information Law)

Lawyer and specialist lawyer for information technology law (IT law)

E-mail: info@goldberg.de