Facebook’s terms and conditions violate German consumer laws, says court

Christina Motejl

In a decision as of 6 March 2012 that covers aspects of consumer rights related to data protection, the Berlin regional court ruled that several clauses of Facebook Ireland Ltd.’s terms and conditions violate German consumer laws and are therefore void (LG Berlin, Judgement of 6 March 2012, 16 O 551/109). Facebook Ireland Ltd. is the contract partner of all Facebook users that are not residents of the USA or Canada.

Firstly, the court said that the users’ consent in Facebook’s terms and conditions regarding the use of their personal data for advertising purposes is void. The reason for this assessment is not known yet – however, in a case against Google, the regional court of Hamburg had decided in 2009 that a consent provided in terms and conditions to a certain use of personal data unreasonably disadvantages a consumer if they are not specifically informed about the intended use of their personal data (LG Hamburg, judgement of 7 August 2009, 324 O 650/08). Facebook does not provide such information to their users either.

In addition, the court ruled that Facebook cannot use terms and conditions to obtain a comprehensive, world-wide and royalty-free license to use the users’ content, as the users remain owners of the intellectual-property rights of pictures and music they compose. The court also provided that Facebook must ensure that the user will be informed about amendments of the terms and conditions and the privacy guidelines in good time before changes become effective.

Finally, the court said that Facebook’s friend finder service violates the law against unfair competition (UWG). Said service offers Facebook users the possibility to check their email address books to see if their friends are already on Facebook. If the friends are not Facebook members yet, the user can send an invitation to them. The court said that Facebook must not send friendship requests without the addressee’s prior consent. Here, it will be interesting to read the written verdict, as one could also regard invitations that were initiated by a user as sent by the users and not by Facebook.

However, the verdict has not been published in detail yet and all information about the case comes from the plaintiff and the regional court. While it is still disputed if German data protection law applies to Facebook’s activities inGermany, as the data controller is probably Facebook Ireland Ltd. whose activities are subject to Irish data protection law, this might not be the case for German consumer rights. Article 6 of the Regulation 593/2008 (Rome1) provides that a contract between a professional from one country and a consumer from another country must comply with the mandatory rules of the consumer’s country of residence, if the professional directs commercial activities to that country.

The case had been brought to court against Facebook Ireland Ltd. by the consumer-rights institution Verbraucherzentrale Bundesverband e. V. Consumer organisations are entitled under German law to take action against companies that use prohibited terms and conditions or illegal marketing practices. Sources say that it is likely that Facebook will appeal the decision.

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