Facebook has deceived its users. It presented as a free service what is instead an exchange based on the trade of users’ personal data, for advertising purposes. This is confirmed by a sentence of the Council of State (of 29 March), which rejected the appeal of Facebook Ireland against a penalty issued by the Antitrust in 2018 for the same reason.
The ruling of the Council of State does not just confirm the assumption Antitrust, but it also “opens the door to many issues relevant to the future of our rights in the digital economy,” he says Guido Scorza, member of the Privacy Authority. “For example: a contract, as in this case for the use of a social network but the examples on the internet are numerous, see Google and other services, can it be based on the trade of personal data? And who is competent to guarantee sufficient measures to protection of users in this trade? The Privacy Guarantor or the Antitrust Authority? “, continues Scorza.
Pivotal issues because they are the pillars on which the data-based digital economy is based, from the web to social networks to healthcare and factories that use artificial intelligence.
The Lazio TAR had reduced the Antitrust sanction (from 10 to 5 million euros), but confirmed the principle that Facebook “deceptively induces consumer users to register” (wrote the Antitrust) “by not informing them adequately and immediately, during the activation of the account, of the collection activity, with commercial intent, of the data provided by them, and, more generally, of the remunerative purposes underlying the provision of the social network service, emphasizing that it is free “.
Facebook has only partially adapted: it has removed the mention of free but has not made explicit the commercial use of user data; hence a further Antitrust sanction, last February, for 7 million euros.
Recourse to the Council of State also demonstrates how fundamental for Facebook. The future of his business (and that of other big techs) is at stake on the wire of data and related rights. As Scorza notes, the climate in this regard has changed a lot in recent months (in Europe and the USA), to the point that even Facebook itself, in appealing to the Council of State, comes to support the importance of personal data.
Thus he wrote in the appeal: “The personal data of each individual constitute an extra commercium asset, since they are fundamental rights of the person that cannot be sold, exchanged or, in any case, reduced to a mere economic interest”.
Principle that wanted to turn to its advantage in the argument against the Antitrust ruling: “we are at the paradox that the data economy giant defends the fundamental right to argue against the possibility that data is the price of a digital service and that therefore the discipline can be applied Antitrust regarding unfair commercial practices, “says Scorza.
However, the Council of State did not want to adhere to this thesis. Because “it would mean denying the evidence, that is, that the data are in fact collected and processed for commercial and profit purposes”, explains Scorza.
Hence the implications of the sentence of the Council of State which, as Scorza notes, opens the door to a necessary greater collaboration between different authorities to protect users, given the complexity of the game: Antitrust, Privacy Guarantor and, for the areas of its competence , Agcom. A thesis also proposed by Franco Pizzetti (former Privacy Guarantor, professor emeritus of constitutional law at the University of Turin) in the recent Protection of personal data in Italy between the GDPR and the revised code (Zappichelli, 2021).
“An important sentence in the current context”, adds the lawyer Antonino Polimeni. “Today the invasiveness of the web in the sphere of user privacy seems, in fact, really disproportionate. Something has to change. The need is felt in a transversal and widespread way. The giants of the internet themselves realize this and they are experimenting with methods to ‘anonymize’ user profiling, Google in the lead, for the near future in which privacy and commercial interests will coexist with greater balance “, concludes Polimeni.
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