A Half-Symposium in Germany

COMPACT Project presented its findings and recommendations as part of its awareness raising efforts within WP4 (first part of Symposium planned for German stakeholders) at a Joint conference of the section International and Intercultural Communication (DGPuK) and the network Media Structures *Inter/Transnational Media Policy and Regulation in Digital Environments: Debates, Strategies, Innovations*, October 24-25, 2019. Venue of the even was Erich-Brost Institute, Dortmund, Germany.


Compact Project, represented by Dr. Andrej Školkay from the School of Communication and Media in Slovakia, has actually presented and discussed three topics:

First, it was Global Suggestions for Social Media Regulation with special focus at novel technology-based and economy-based approaches (or incentives-based approaches) to tackling social media harms.

Second, it was An Overview of Governmental Initiatives Targeting Online Harms.

Third, it was Social Media Governance in V-4: The Czech Republic, Hungary, Poland and Slovakia.

While it can not be said that there was an extensive discussion about any of these topics (partly related to a limited number of participants and their unique specialisations), nonetheless, it was useful exchange of opinions and information sharing.
Some highlights from the event.

The first key note speech was visually powerful presentation by R.Suarez Candel, head of Media Intelligence Unit, EBU (a lobby group). He in principle defended the role of PSM in converged environment. The PSM can survive only if they serve their viewers and listeners.
Facebook and the Antitrust Authority Decision in Germany Pascal Schneiders from the Mainz University (Germany) also analysed the appropriateness of the antitrust decision in the case of Facebook in Germany. At the beginning of February 2019, the German Federal Cartel Office (Bundeskartellamt or shortly BKartA) presented a groundbreaking decision against Facebook. The BKartA (Antitrust Authority) decided that Facebook takes a dominant position in Germany and abuses it in order to demand data from its users in a disproportionate extent. With the decision, the BKartA Facebook sets the obligation for an “internal unbundling” of data. For example, data collected via third-party offers or services belonging to the Facebook group, such as WhatsApp or Instagram, may in the future only be assigned to their Facebook account with the explicit consent of the user. Until now, Facebook had stipulated in its terms and conditions that the social network only may be used on the condition that Facebook also collects data about the user on the Internet or on smartphone apps outside of the Facebook page and assigns it to the Facebook user account.

Facebook itself argues that the BKartA exceeded by the recourse to data protection legal valuations its area of expertise. It is sometimes criticized that such a convergence of antitrust and data protection law is accompanied by effective, but arbitrary regulatory measures.

The decision of the BKartAs is a first essential one intertwining antitrust and privacy law. Due to the author, the measures required by the BKartA have a political signal effect and are the minimum that is required for proper functioning of an internal market. In the face of repeated, partly consciously accepted violations of consumer or data protection law, accompanied by repeated, but ultimately ineffective excuses, other effective sanctioning devices are missing.

However, the question is whether the way this was done is the right one. The arguments for legal intervention are based mainly on a normative causality, and, with the vague legal concept of the "outflow of market power", stands on wobbly legs. One can wonder, that only if the conditions were enforceable due to market power (exploitation of users, strict causality of market power) or the enforcement of conditions by a dominant company impedes competition (obstruction of competitors, causality in relation to the outcome), antitrust law could be applicable? Conditions as an expression of disturbed contractual parity alone, do not justify the application of antitrust law.

Furthermore, it could also be argued that, with data protection law harmonized at EU level, sufficiently effective sanctioning instruments have been created and whether it the leverage of antitrust law is necessary to enforce data protection law as such. A comparative market concept would offer the BKartA, despite all difficulties of implementation, the argumentative advantage that in this case also data use conditions legal under data protection law could constitute an abuse of market power from an antitrust assessment, if they are substantially above those in a (hypothetical or real) comparative market. This could counter Facebook's argument that there is no breach of law, otherwise the data protection authorities would intervene. Alternatively, the BKartA could rely more strongly on the merely incidental reasoning that the appropriated personal data constitute an 'essential facility' that hinders competition. In addition, these rules should be easy to understand and to access. Is possible, that the data protection authorities did not "quickly and with engagement" identify the infringement identified by the BKartA committed enough and the BKartA closes a legal gap. This speaks for a better staffing of the data protection authorities.

Platforms and Intermediary Services – same but different?

Stephanie Fuchsloch (Dortmund University, Germany) presented similarities and differences in legal and conceptual terminology used by the European Commission in its documents and directives. There are different definitions and terms used, thus unification might be useful.