Is That Really Necessary? Facebook, RFI, and the General Court

By: Björn Herbers (D’Kart)

Facebook, excessive data collection, antitrust law… I know what you’re thinking and you’re right: data is the new oil, if there is anything that can tame the Tech Giants it is antitrust law. Facebook dominates the market for social networks and the Federal Court of Justice has no serious doubts that Facebook’s data collection is abusive. So what’s new, you ask? The two cases (T-451/20 and T-452/20) brought before the General Court in July and on which the court in Luxembourg has now decided on interim relief, are about something else and that is only marginally to do with the combined data power of “GAFA”. Facebook, for its part, accuses the European Commission’s competition authorities of going too far in collecting data and not holding back even with sensitive personal information. The Commission as the true data-hungry monster, not GAFA – “man bites dog”, as it were? In any case, the General Court in its decisions of 29 October, ordered the Commission to set up a data room and arrange specific protective measures for certain data that Facebook must provide. At the same time, there were very critical comments on the Commission’s practice with regard to requests for information and the Court’s order suggests (very) strongly that companies’ rights of defence against “fishing expeditions” and the uncontrolled handling of their data must be boosted.

That sounds interesting, but can we start at the beginning?

With pleasure. As you know, the Commission has been investigating Facebook in two cases since last year: in the first case (AT.40628 – “Facebook Data-related practices”), the Commission is investigating whether the collection, processing, use and monetisation of data by Facebook is in line with EU competition law. One of the suspicions is that the social network uses its data trove to identify and squash potential rivals. In the second case (AT.40684 – “Facebook Marketplace”), the Directorate General for Competition is investigating whether Facebook – by linking social networks and Facebook Marketplace, where users can offer and sell items for free – could be abusing a dominant position and unfairly hindering other providers of virtual flea markets.

Strong stuff, but Facebook is at pains to stress that antitrust compliance is a core consideration in the way the company does business and that it is cooperating with the Commission to clear up the allegations: “We stand ready to answer any questions the European Commission may have“. The Commission seems to have taken this promise very literally. After a series of requests for information to Facebook and other market participants and some back-and-forth about which information and documents Facebook should send to Brussels, Facebook received another letter from the Commission in early May. The Commission now adopted formal decisions requiring extensive internal documents from Facebook in both proceedings. According to Facebook’s antitrust team, the request concerned hundreds of thousands of documents. The sheer number of documents is due to the Commission’s request for submission of all documents available on Facebook’s IT systems containing certain search terms and that these search terms were of a very general nature, such as “advantage”, “quality” or even “looked at”. Facebook claims that, while it would of course still like to cooperate with the Commission, “the exceptionally broad nature of the Commission’s requests means we would be required to turn over predominantly irrelevant documents that have nothing to do with the Commission’s investigations.” At the same time – and here Facebook had particular reservations – a lot of sensitive information from Facebook employees or the company itself would get caught in the net of this broad Commission request. Documents containing employees’ medical information, personal financial documents and private information about employees’ families or internal security precautions documents would show up using the proposed search terms. Hence, Facebook’s response to the Commission: Sorry, but no can do. Instead, Facebook’s external lawyers could filter out from the documents requested those that are obviously irrelevant to the investigation and/or contain sensitive personal information. However, the Commission did not consider it the best idea to leave it to Facebook’s lawyers to decide which material its case handlers should be allowed to see…

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