The First Civil Senate of the German Federal Court of Justice, which is responsible for competition law among other things, currently has to rule on the circumstances under which the declaration of consent given to Facebook for the transfer of members’ data to a game operator is effective and the transfer of data is therefore lawful.

Via the “App Center” on Facebook, you can use online games operated by third parties, among other things, free of charge. The umbrella organization of the consumer advice centers of the German states, complained that in November 2012, several games were available in this app center, where information about the forwarding of data by Facebook to the operator of the games was displayed on the corresponding pages under the button “Play now”, as well as the notice that the user, by continuing, agrees to the terms and conditions and privacy policy of the respective operator, which were linked in this notice.

The VZBV claims that the users’ declaration of consent is ineffective because the information provided in this regard regarding the necessary information of the users is just as insufficient as the link to the general terms and conditions and data protection provisions of the respective game operator. In addition, the reference to the transmission of data in one of the games was an inappropriately disadvantageous and non-transparent business condition for the consumer.

The Regional Court ordered Facebook, as requested, to cease and desist from presenting free games in the App Center in such a way that users of the network, when pressing the button, make a declaration to transmit the personal data deposited with Facebook to the operator of the game and to authorize the operator to post information on behalf of the consumer. Facebook’s appeal was unsuccessful. The Kammergericht assumed that German law was applicable to the dispute. According to this, Fascebookw had violated § 4 para. 1 BDSG in the version applicable until May 24, 2018 (hereinafter: BDSG aF) because, pursuant to Section 3 para. 4 No. 3 BDSG aF had processed data, the consent of the users according to § 4a para. 1 sentences 1 and 2 BDSG aF, however, was invalid. Based on the indications given by the defendant, it remains open which data would be released. The data processing was also not permitted pursuant to Section 28 para. 1 BDSG aF, because the data transfer does not serve its own purpose, but rather the achievement of a business purpose. § 4 para. 1 BDSG is a market conduct regulation, so that the violation of it is at the same time anti-competitive pursuant to § 4 No. 11 UWG old version or § 3a UWG new version. Furthermore, the Court of Appeal assumed that the notice given in one of the games constituted a general business condition within the meaning of Section 305 (1) of the German Civil Code. 1 of the German Civil Code (BGB), which the users are obliged to accept pursuant to Section 307 (1) of the German Civil Code (BGB). 1 BGB is unreasonably disadvantageous.

The Court of Appeal allowed the appeal. In its appeal, Facebook continues to pursue its motion to dismiss the action. The hearing date for this will be held on December 13, 2018, 12:00 noon.

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