In a ruling dated March 9, 2016 (Ref.: 12 O 151/15), the Düsseldorf Regional Court prohibited the operator of a website from using social plugins. Such plugins include the Facebook Like button. Its use constitutes an infringement of competition law if the website operator does not inform the user that the IP address and other personal data will be passed on to the plugin provider – such as Facebook.
Use of Facebook social plugin
The fashion chain Peek und Cloppenburg Düsseldorf (P&C) operates an online store in addition to numerous stores. The company integrated the Facebook “Like” plugin into its website. Every time a user accesses the website, personal data is automatically transmitted to Facebook. This also includes the user’s IP address. Even if the website visitor is not a member of Facebook, the data is transmitted.
Facebook then uses the data obtained in this way to display personalized advertising. Peek und Cloppenburg did not inform its website visitors in advance about the transmission of the data and did not obtain their consent.
Use of social plugins can constitute a breach of competition law
The NRW consumer advice center considered the integration to be anti-competitive and demanded that the company cease and desist and issue a cease-and-desist declaration with a penalty clause. After P&C refused, the consumer advice center filed a lawsuit – with success.
The use of social plugins violates Section 3a UWG in conjunction with Section 13 TMG. However, only if the user is not informed about the transfer of personal data.
Section 13 TMG stipulates that the operator of a website must inform the user about the type, scope and purpose of data collection and transmission before the start of the usage process. However, P&C did not do this.
Social plugins transmit personal data …
The social plugins transmit personal data – including the IP address – when the user simply visits the website. If the user is still logged in to Facebook, the IP address can be assigned directly to their specific user account. This also applies to Facebook users who have logged out but not deleted the Facebook cookies.
… and influence the purchase decision
The case is relevant under competition law due to the fact that the use of social plugins serves the sale of goods and advertising. According to Düsseldorf Regional Court, the plugin influences the commercial behavior of users with regard to the range of goods displayed on the page. Visitors to the site are made aware of how many users “like” (have liked) the site. This in turn has an impact on the purchase decision. Because where everyone buys, there seem to be good offers.
Extreme caution is therefore required when integrating social plugins on your own website. A simple privacy policy is often not enough and the visitor must also be informed. This applies not only to the integration of Facebook plugins, but also to those of Google, Twitter, Linkedin or Xing. It should also be checked whether the buttons can also be integrated using the so-called “two-click” solution. If in doubt, it is advisable to seek qualified legal advice. In this way, the risk of a costly warning or lawsuit can be avoided.