Excessive Data Collection as Anticompetitive Conduct – The German Facebook Case

In a high-profile decision of 6 February 2019, the German Federal Cartel Office prohibited Facebook’s data collection policy as an abuse of dominance for infringing its users’ constitutional right to privacy.  The case triggered a remarkable inter-institutional dispute between the key players in German competition law.  Conflicting rulings by the Düsseldorf Higher Regional Court and the German Federal Court of Justice further illustrate how deeply divided the antitrust community is on the role of competition law in regulating excessive data collection and other novel types of harm caused by dominant digital platforms.  This contribution discusses the original prohibition decision, the ensuing courts orders and legislative reform proposals in the broader context of EU and US competition law.