Internet Law

Facebook fan pages may be illegal

Nowadays, Facebook ‘like buttons’ can be found on almost all business websites. Whoever clicks the button remains connected with the company over Facebook and receives information about new products and offers directly. Users can also share their experiences with other fans. But are such Facebook fan pages illegal? In 2011 concerns were already being raised about the protection of personal data.

Facebook fan pages may be illegal © simsalabin1-Fotolia

Facebook fan pages may be illegal © simsalabin1-Fotolia

 

Personal data saved without consent

In 2011, the Independent Regional Centre for Data Protection, Schleswig Holstein, declared Facebook fan pages illegal.

By clicking the Facebook ‘like button’ personal data is transferred to Facebook in the USA where it is saved and analysed. The Centre for Data Protection and many other data protection advocates are of the opinion that such a process infringes German and European data protection legislation, as users are not sufficiently informed as to what personal data is being transferred and how it will be used. When using Facebook fan pages, users also have no opportunity to object to the use of their personal data.

Under German data protection law, online service providers may only utilise users’ personal data if there is an option to object. The lack of the possibility to object to the use of personal data therefore clearly breaches the German Telemedia Act.

German data protection law

Having said that, it is unclear whether German data protection law even applies to such fan pages.

Facebook’s European subsidiary is based in Ireland which means that it is subject, in the first instance, to Irish law. Indeed, the Higher Regional Administrative Court of Schleswig Holstein decided in April 2013 (Az. 4 MB 10/13, 4 MB 11/13) that German data protection law does not apply to Facebook. However, these decisions apply solely to Facebook and not to those companies which run Facebook fan pages. It therefore may be the case that German data protection law could apply to those companies based in Germany which use Facebook fan pages. A court decision clarifying this question is still awaited.

Popularity of Facebook fan pages

In light of the growing popularity of Facebook fan pages, it seems that users’ concerns about their personal data are secondary. From this, it is clear that companies which are not on Facebook risk suffering from a competitive disadvantage.

Even ministries, authorities and public institutions are beginning to establish links to their customer base through Facebook.

Data protection supporters see such activities as the biggest threat. In their view, authorities should not be permitted to publicise photos of suspected criminals on Facebook; nor should private individuals be allowed, following the robbery their premises, to place photos on Facebook of the suspected perpetrators.

Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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