Social Media Law

Administrative Court Schleswig (preliminarily) overturns injunction of State Data Protection Office against Facebook’s real name policy

Is it permissible for Facebook to enforce its real name policy? The administrative court of Schleswig had no privacy law concerns with this requirement and in a preliminary relief procedure overturned an injunction by the independent State Data Protection Office (ULD). The court thus rejected the injunction by the ULD which demanded immediate unblocking of user accounts.

This was preceded by a “crackdown” of Facebook against users not having used their real name but a pseudonym instead. Facebook has taken rigorous steps against some users which have not obeyed the policy and Facebook subsequently suspended their accounts.

This prompted the independent State Data Protection Office (ULD) to take action.

The ULD ordered Facebook (both Facebook Inc., incorporated in the USA, and Facebook Ireland Ltd. as the European subsidiary) by administrative act to secure the rights of Facebook users to utilize the platform by using pseudonyms.

The order stipulated that Facebook would be fined 20,000 Euros if it did not comply with this administrative act within two weeks.

To underscore its determination, the ULD declared the act as immediately enforceable. In German administrative law that means that Facebook has to implement this order even if it chooses to appeal it.

Facebook appealed this administrative act. Furthermore, it formally requested the administrative court that the suspensive act of the appeal shall be reinstated (and thus make the act not immediately enforceable).

The administrative court Schleswig granted Facebook’s motion in both proceedings with its decision from 14 February 2013 (file-no.: 8 B 60/12 and 8 B 61/12).

The court stated that the injunction lacked legal basis. The provision of § 13 para 6 of the Telemediengesetz (TMG), the German Act for Telemedia Services, was not applicable, as German privacy law was not applicable.

Instead the significantly less strict Irish privacy law was applicable.

The court justified this mainly by the fact that the processing of personal data was not carried out at the German subsidiary “Facebook Germany GmbH” but instead occurred at the European subsidiary Facebook Ireland Ltd with its place of business in Dublin.

This decision by the administrative court Schleswig is not yet effective. The ULD has already announced that it would appeal this decision.

I am most excited how this case will proceed. The real name policy raises concerns as Facebook shows little regard for the privacy of its users and frequently ignores German privacy law. As a user you should pay close attention to your privacy settings.

Companies should be careful to maintain their company information/legal details according to the applicable rules.

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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