Facebook Decision of the Berlin District Court: Does the use of Unfair Terms Constitute Unfair Competition?

Özet

Unfair terms regulation is aimed at protecting consumers from differences in negotiation power and information asymmetry between the consumer and the entrepreneur. However, the unfair terms regulations serve not only for the protection of consumers but also the protection of competition between entrepreneurs so as to prevent unfair competition. Hence, based on the regulation the use of terms contrary to the rule of good faith may constitute unfair competition (TCC Art.55/1/f.). Nevertheless, the legal consequences of unfair terms and unfair competition regulations are different. This study analyses the effect of the use of unfair terms on the claims based on unfair competition. The decision of the Berlin District Court on 16 January 2018 regarding Facebook’s terms of use has been selected as a reference to answer to the question . Thereby, the interaction of different protection mechanisms is demonstrated. The decision is analysed not in terms of data protection law, but in terms of the assessments regarding whether the use of unfair terms constitutes unfair competition. The court assessed the terms of use for conformity with the provisions of BGB §§305-310 and decided whether the provision of services based on terms of use containing unfair terms constitutes unfair competition. This case, filed by a consumer organisation to protect the interests of consumers, has been chosen deliberately. It is aimed at emphasising the significance of the collective action in consumer protection. Evaluating the protection mechanisms as a holistic approach will ensure a more effective protection of both the consumer and competition.