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Facebook under fire from German privacy watchdog….again

February 2013

A new chapter has been added to Facebook's ongoing story of quarrels with Germany's Data Protection authorities. The social network has been again subject to an order by the regulator of Schleswig-Holstein in light of its terms of use regarding privacy matters. Both Facebook Inc., USA, and Facebook Ltd., Ireland, received formal requests on 14 December 2012 requiring them to cease a registration which asks users for their actual names.

German Data Protection law provides that a web service provider shall offer an anonymous use of web services where this is technically possible and reasonable. Therefore, the German regulator claims, it should be made possible to use Facebook by registering with pseudonyms. The "real name requirement" would neither prevent abuse of the service with regard to insults or provocations nor would it help to prevent identity theft.

This interpretation, however, has in fact no substantial legal grounds: First of all, it is already questionable if German Data Protection law applies to Facebook's services. Facebook has no branch or subsidiary in Germany but only a place of business in the US and Ireland, therefore, it could be argued that any processing of personal data is subject to the Data Protection laws of Ireland. This is a position that Facebook has taken often in the past. In turn, this would mean that anonymous - face maskthe obligation of a "real name requirement" should be assessed under Irish Data Protection laws. In contrast, however, even if German law would be applicable, there is no hard obligation to ensure an anonymous or pseudonymous use. Rather, the provider is subject to a duty of assessing whether this is a possibility, hence, there is room for discretion on Facebook's side. Furthermore and more importantly from a practical perspective, German case law has been placing tight obligations on web service providers: On the one hand, courts have been requiring companies to publish their contact data and thus their "real name" by way of an imprint when using social media for marketing purposes, e.g. on company-owned Facebook or Twitter pages. Therefore, the above-mentioned orders contravene these rulings at least for cases of commercial use. On the other hand, German case law has been increasing the threshold of the duties for host providers with regard to the monitoring of infringing activities. If Facebook was to comply with the German privacy watchdog's orders, the means to identify potential infringers of intellectual property rights would be restricted.

Meanwhile, Facebook reportedly reacted by filing an objection with the relevant court. It was quoted saying that it found the orders completely unreasonable and a waste of the German taxpayers' money. According to Facebook, the "real name requirement" has always been as a declared and intended measure to safeguard the safety of the identity of Facebook users, the social network said. It remains to be seen what view the German courts will take on this interesting subject which is relevant to all social media in Germany.

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Facebook under fire from German privacy watchdog
Thanos Rammos


Philipp Koehler

Thanos and Philipp discuss the next chapter of issues facing Facebook from the German Data Protection authorities.

"German Data Protection law provides that a web service provider shall offer an anonymous use of web services where this is technically possible and reasonable."