Facebook Inc. – Court Ruling (Italy, 2021)

On the 29th of November 2018, following a complaint filed by three consumer associations, the Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato – AGCM) adopted a decision against Facebook Inc. and Facebook Ireland. The Authority found that Facebook engaged in an unfair commercial practice towards its users by failing to inform them adequately and immediately about the commercial nature of the processing of their personal data, while emphasizing that registering to the platform was free of charge. For this reason, Facebook Inc. received a fine of € 5,000,000. The AGCM also found that Facebook engaged in an aggressive commercial practice towards its users by unduly influencing its users’ preference concerning the processing of data for commercial purposes. This was done by pre-selecting the option to consent to sharing data with third parties, while presenting them with the prospect of significant limitations in case they de-select such options. For this reason, Facebook Ireland received a fine of € 5,000,000. On the 18th of December 2019, the Regional Administrative Tribunal (Tribunale Amministrativo Regionale – TAR) of Lazio partially upheld two separate appeals brought by Facebook Inc. and Facebook Ireland. On the one hand, the TAR agreed with AGCM findings that Facebook misled its users into registering to the Facebook platform “for free”, without providing adequate and timely information about the commercial use of their personal data. On the other hand, the Tribunal found that the pre-selected options provided to Facebook’s users during their registration does not actually gather their consent to the transfer of data to third parties. This actually occurs at a later stage and on a granular level. Moreover, the TAR found that the AGCM failed in properly demonstrating the aggressive nature of such practice, and how it influenced the choices of the users. Both Facebook and the AGCM appealed against the TAR decision. Among others, Fa