With sentence no. 261 of January 10, 2020, the first instance Regional Administrative Court of Lazio, first section, partially confirmed the fine of ten million of euros inflicted by the the Italian Competition independent Authority to Facebook for the adoption of a commercial practice considered unfair, halving it to five million of euros and recognizing the commercial value of personal data, whose economical exploitation constitutes a remuneration for the service offered by the social network.

The story

The Administrative Court ruled on the appeal filed by Facebook Inc. with which a measure was challenged by the Competition and Market Authority which, in December 2018, had jointly sanctioned the companies Facebook Ireland Ltd. and its parent company Facebook Inc. for violation of the Consumer Code, by imposing two fines of five million euros each for the two conduct complained of. The AGCM's decision deals with two conduct deemed, respectively, misleading and aggressive towards consumers. The first contested conduct concerned the famous slogan "Subscribe. It's free and always will be "present on the Facebook login and registration page, which emphasized the free nature of the service without adequately informing users of the activity of collecting and using, for commercial purposes, personal data from them provided. This practice was therefore considered deceptive, as it was not able to allow a conscious choice of the consumer, who was not informed with sufficient immediacy and clarity of the remunerative purposes underlying the provision of the social network service. The second conduct sanctioned by the AGCM concerned the mechanism of transmission of personal data generated by users from the platform to third party apps and websites and vice versa. According to the Authority, Facebook implemented an aggressive practice of undue conditioning of the users of the service to the transmission of their data from Facebook to third party websites or apps, and vice versa, for commercial purposes, through the application of a pre-selection mechanism of the most broad consensus on data sharing. In this way, users would be unknowingly influenced by the maintenance of the choice pre-set by Facebook.

The TAR decision

The TAR, preliminary addressing Facebook's complaint about the inapplicability of the institution of the "parental liability" to the present case, rejects this ground of appeal considering the imputation of the parent company Facebook Inc. legitimate - jointly and severally with the subsidiary Facebook Ireland Ltd. - for the incorrect commercial practices implemented by the latter, not by basing exclusively the liability of the parent company on the concept of "parental liability", but by noting its omission to supervise the conduct of the subsidiary and certifying the sharing the benefit of the effects produced by unfair commercial practices. The AGCM's competence in the matter of personal data is also confirmed: the appellant's defenses that complained about the lack of power of the Antitrust for interference in a field of exclusive competence of the Guarantor Authority of Privacy are rejected, by virtue of the alleged belonging of the conduct complained of regarding the processing of personal data, with the consequent only applicability of the "Privacy Regulation" on the basis of the specialty principle. The TAR, arguing the reasons underlying the competence of the AGCM, has the opportunity to affirm the potential negotiating value of personal data, no longer merely an expression of a fundamental right of the individual's personality, but a parameter of investigation within the relationship commercial between consumer and service provider. Thus emerging two different profiles of evaluation of personal data, there is no incompatibility between the provisions of privacy protection and those regarding consumer protection, which instead arise in terms of complementarity, since they concern different behaviors: the two disciplines in fact in relation to their respective protection purposes, impose different information, functional obligations, on the one hand, for the correct processing of personal data for the use of the platform and, on the other hand, for transparency of information regarding the economic value of personal data and the lucrative purposes pursued through their exploitation. With this specification, the TAR also excludes the danger feared by Facebook about the risk of a multi-sanctioning effect of the same conduct. With regard to the second conduct taken into consideration by the AGCM, concerning the mechanism for the transmission of users' personal data to third parties, the Administrative Court canceled the 5 million euro penalty, considering the Authority's measure illegitimate because of the failure evidence of the existence of a suitable conduct to condition consumer choices.

The capitalization of personal data

The ruling of the TAR is of considerable importance because, in an unprecedented way, it explores the scope of the economic interests of consumers with regard to the disclosure and use of their personal data. If historically, in fact, the protection of personal data has been developed in consideration of their quality of expression of a fundamental right of the individual's personality, with consequent provision of forms of protection that cannot be renounced, such as the right to withdraw consent, the TAR now analyzes personal data in their quality of goods available in a negotiating sense, susceptible to economic exploitation, potential object of sale and purchase between economic operators and interested parties: the content of personal data provided by the consumer and their consequent profiling would represent the punctual counter-performance of the consumer to provide the service.

The estimation of personal data from an asset point of view consequently requires economic operators to comply with the obligations of transparency, completeness and non-misleading information provided by consumer protection legislation. The user must therefore be made aware of the exchange of services underlying the adhesion to a synallagmatic contract, which proves to be that of using the social network.