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Meta v Bundeskartellamt (CJEU): GDPR non‑compliance as abuse of dominance; competition authorities may assess GDPR; narrow lawful bases for behavioural advertising; consent optional with non‑personalised or paid alternative

Published on: 11 September 2023

Published by a LexisNexis Information Law expert
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Meta Platforms Inc (formerly Facebook Inc) and other companies v Bundeskartellamt ECLI-EU-C-2023-537

What are the practical implications of this case?

This Court of Justice ruling signals a shift in competition enforcement, centring on data-gathering practices that may weaken competition. It recognises that control over personal data is now a key competitive parameter in the digital economy, and that compliance with data protection rules helps to prevent abuse of dominance. Consequently, dominant online platforms that accumulate extensive data for personalised advertising, both on and off their services, can expect their processing to be examined by multiple regulators. The Court’s narrow reading of contractual ‘necessity’, and of Meta’s claimed legitimate interests in processing Facebook users’ data, mirrors the enforcement taken against Meta by the Irish Data Protection Authority in December 2022 (see LNB News 04/01/2023 27). It likewise aligns with obligations for firms in strong market positions (gatekeepers) under Article 5 of Regulation (EU) 2022/1925 (the EU Digital Markets Act), which prohibits combining on- and off-platform data without consent...

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