German Data Protection Laws Do Not Apply to Facebook

On February 14th, 2013 the Administrative Court of Schleswig held in two decisions that German data protection laws do not apply to data processing by Facebook (file numbers 8 B 60/12 and 8 B 61/1).The interlocutory judicial procedure had been initiated by Facebook Inc. (USA) and Facebook Ltd. (Ireland) after they had both been ordered by the Independent State Center for Data Protection of Schleswig-Holstein (in German Unabhängige Landeszentrum für Datenschutz or ULD) to allow users to sign in on Facebook using a pseudonym and to unblock those user-accounts that had been blocked due to the users not using their real name and data. By way of the judicial procedure Facebook Inc. and Facebook Ltd. sought to achieve that they could not be forced to follow the ULD’s orders until a court’s final adjudication.

The Administrative Court of Schleswig now held that – for now – Facebook Inc. and Facebook Ltd. do not have to follow the ULD’s orders, as they are based on German data protection laws and therefore unlawful. Neither Facebook Inc. nor Facebook Ltd. had to oblige by these laws, but rather had to follow the Irish data protection laws. They – so the court held – were applicable according to German law, as well as according to the Data Protection Directive (Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data), as the relevant data processing was carried out by Facebook Ltd. in Ireland, but not by the Facebook GmbH in Hamburg, Germany. The court carried on stating that the German entity could not be considered a subsidiary of Facebook Inc. with regard to the data processing relevant in the case laid before the court, as it was only responsible for marketing and acquisition.

Shortly after the court’s decision had been published, the ULD announced to appeal against the decision. Thus, it remains to be seen, if – according to German courts – German Data Protection laws do or do not apply to Facebook.

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