Meta (Facebook) introduces new accounts center – an important step in the implementation of the Bundeskartellamt’s decision

Meta has announced plans to introduce a new accounts center. The accounts center will allow Meta’s customers for the first time to make a largely free and informed decision about whether they want to use Meta’s services separately or in combined form. Using the services in combined form would allow them to use additional functionalities such as crossposting, where a post is simultaneously published across several social media outlets, but Meta would then use the combined data for advertising purposes.

Andreas Mundt, President of the Bundeskartellamt: “In 2019 we broke new ground in the area of competition law with our Facebook decision, which is based on the general prohibition of abusive practices. We now see that it’s a rocky road to a free and informed user decision on how their data is being processed, but it can be achieved. This development therefore marks an important step in the implementation of our decision, but the process is not yet concluded.”

In particular, it remains to be clarified how users can be informed as correctly and neutrally as possible about the use and data processing consequences involved in Meta’s Business Tools and plugins (e.g. Facebook Login, “Like” button) in a central location and how they can consent to or reject the use of their data in a simple way, and under which exceptional circumstances data processing across accounts can be legal even without the users’ consent (e.g. for security purposes).  Unless the required consent has been free and informed, it has to be requested again.

On 6 February 2019 the Bundeskartellamt prohibited Meta (formerly Facebook) by way of a decision from combining user data from several sources without the users’ consent. Meta appealed this decision to the Higher Regional Court of Düsseldorf (OLG Düsseldorf). On 26 August 2019 the court ordered the suspensive effect of the appeal upon Meta’s request. On 23 June 2020 the Federal Court of Justice revoked the appeal decision upon the Bundeskartellamt’s request and denied Meta’s request to order the suspensive effect of its appeal. On 24 March 2021 OLG Düsseldorf referred certain questions to the European Court of Justice (ECJ) and suspended the proceeding until the ECJ’s decision. The ECJ is to provide clarification on how to interpret certain provisions of the General Data Protection Regulation (GDPR) and whether the Bundeskartellamt may also interpret GDPR norms when weighing interests in decisions under competition law. Advocate General Rantos answered the latter in principle in the affirmative in his Opinion of 20 September 2022. The decision of the ECJ is expected to be pronounced on 4 July 2023.

The Bundeskartellamt was in continuous talks with Meta regarding the implementation of its decision despite pending litigation of the original decision. Meta then introduced an accounts center and reviewed its data infrastructure. This accounts center allowed users for the first time to decide for themselves whether to combine their Meta service accounts (e.g. on Facebook and Instagram), the linking of accounts allowing Meta to also use the data combined across accounts to create advertising profiles and apply personalised advertising. The Bundeskartellamt considered this first accounts center to be seriously deficient. Neither did it inform customers in a neutral way nor were all relevant pieces of information shown in a transparent and easily accessible form.

In February 2023 Meta presented a plan to implement the Bundeskartellamt’s decision following intensive talks, which included, inter alia, a significantly modified accounts center that was discussed in detail with the Bundeskartellamt. Meta made a number of changes to the accounts center in the process, which made the overall user journey significantly more transparent and comprehensible. Several design elements and wordings were changed that could have nudged users to combine their accounts. The wording was also changed to specify in greater detail what is actually meant (e.g. “personal data” instead of “information”); and finally, the process required to separate accounts was considerably simplified. Although there is still potential for optimisation, it can ultimately be said that Meta’s customers can now make a largely free and informed decision when using the accounts center. They will be presented with a general choice: Either they use all services separately with all major functions or they decide to use additional functionalities across accounts, which involves sharing more personal data.

The assessment that Meta’s account center facilitates a largely free and informed choice for users is based on the standards developed in the 2019 Facebook decision. Therefore, it cannot be ruled out that additional legal bases, in particular Section 19a of the German Competition Act or the provisions of the Digital Markets Act, may require stricter standards. It should also be noted that the assessment of Meta’s accounts center cannot simply be transferred to other situations in which users make choices, because in each case the implications and the overall context of the respective user decision have to be taken into account.