NEWSLETTER-2019-metin

110 NEWSLETTER 2019 this social network. Therefore, Andreas Mundt stated that there can be no explicit consent given through free will. As a result, it has been determined by the Cartel Office that Face- book’s data processing activity is abuse of its dominant position and constitutes a violation of competition. Also, Facebook collects user data through other companies in the same group, such as Instagram and WhatsApp, as well as data on other websites and, overall, main- tains very detailed user data. The Cartel Office considers Facebook’s activity of collecting data, especially from third-party internet resources, as an exploitative practice, describing it as an abuse of dominant position 3 . Facebook, as a dominant undertaking, unlike its competitors, extensively collects consumers’ data, and this is a violation of competition under Article 19 (1) of the Federal German Competition Act. The Cartel Office referred to the case-law of the Federal Supreme Court of Appeals for the char- acterization of this behavior as being exploitative. This is referred to as exploitative behavior if disproportionate contractual obligations are imposed depending on the market power or superiority of one party, as regulated under Article 307 and subse- quent Articles of the German Federal Civil Code. Therefore, the Cartel Office underlined that this “unusual” type of competition violation that appeared in the Facebook file was, in fact, a type of well-known exploitative behavior from the standpoint of German law. In addition, it was determined by the Cartel Office that Facebook’s imposing its data processing policy on the basis of market power, constitutes an application of disproportionate conditions against consumers in terms of data protection law. As a result, the Cartel Office did not impose an administrative fine on Facebook but, instead, requested changes to the data processing activity. Accordingly, Facebook will be able to continue to collect data on channels, such as WhatsApp and Instagram, within the same group. However, in order to transfer the data obtained from these channels to the Facebook accounts of the said users, explicit consent must be 3 For mentioned detections: https://www.bundeskartellamt.de/SharedDocs/ Entscheidung/DE/Fallberichte/Missbrauchsaufsicht/2019/B6-22-16.pdf?__ blob=publicationFile&v=4, p. 8-10.