The exploitation of users’ data: 10 million euros fine imposed on Facebook by ICA

​On 29 November 2018, the Italian Competition Authority (ICA) closed the proceedings started on 6 April 2018 by a number of Consumers’ Associations against Facebook Inc. and Facebook Ireland Ltd. As a result, the ICA fined the social network for having implemented two unfair commercial practices in violation of the Italian Consumer Code.

Firstly, the ICA considered the privacy statement adopted by Facebook to be misleading, as it lacked in immediacy, clarity and completeness. In particular, Facebook did not only fail to provide relevant information, that are essential in order to enable the consumer to take informed choices, but also led the user to confuse the commercial purposes of a social network with social and cultural ones.

Moreover, the ICA also found the transmission of data to third parties to be aggressive, since it is carried out by Facebook for commercial and profiling purposes, through pre-selection mechanism, without requiring any express and prior consent to the interested subjects.

As a consequence, the ICA imposed a fine of 10 million euros on the social media company, also requiring the publication of an amending declaration with the purpose to prevent the unfair practices from continuing to have an effect.

The importance of this decision consists in the focus of the ICA on the economic value of personal data. In other words, the concept of "consideration" can no longer be limited to economic transactions, but it must be gradually extended to any form of uselessness that the consumer is willing to bear, in a more or less conscious way, and in return for the use of a specific service (e.g.: the use of social networks against the consent to the use of personal data for marketing purposes).

Equally important, the observance of the privacy rules, far from being only within the competence of the Data Protection Authority, is also to be considered as a matter of Competition Law with reference to unfair commercial practices.

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