Invites issued by Facebook users to e-mail contacts not previously a member of Facebook are permissible under competition law. What then makes the Facebook “Friend finder”, which is implemented similarly on other social media platforms, inadmissible under competition law?
The main issue is in the fact that such invitation e-mails are considered as advertising within the meaning of competition law regardless of the fact that they are dispatched by registered Facebook users intending to “find friends”, since the feature is provided by the platform to invite third parties to participate in Facebook. Any e-mails sent in bulk by way of the specific Facebook feature cease to be considered private communications of the user, but rather as advertising for the social media platform. In case law, the concept of advertising is interpreted rather loosely. According to the legislator, the activities of a company geared at the sales promotion for its products or services, which encompasses the indirect promotion by image advertising or sponsorship in addition to direct product-related advertising, qualify as advertising (cf. BGH GRUR 2013, 259, 260 – Recommendation e-mails). According to this broad definition, unsolicited referral e-mails sent by users to third parties via company websites (tell-a-friend feature), are assessed in the same manner as unsolicited promotional e-mails by the company itself, and are qualified as unacceptable harassment pursuant to Sec. 7 para. 2 no. 3 UWG [Fair Trade Practices Act].
In the current “Friend finder” judgement, the court also resolved that such invitation e-mails are to be regarded as advertising for the social media platform rather than private messages from the “Facebook” user from the perspective of the addressees.
According to the BGH, invitation e-mails to recipients without their express consent qualifies as unacceptable harassment pursuant to Sec. 7 para. 2 no. 3 UWG. The full text of the decision has yet to be published; it remains uncertain whether this qualification of invitation e-mails as advertising also applies if the recipients of the invitation e-mails are already registered on Facebook. The other interesting question pertains to the conditions under which, once the user mail address account has been imported to the Facebook user account, invitation e-mails by the social media platform for advertising purposes would no longer be regarded as unlawful. This would most likely be the case if the user sends invitation e-mails to specific recipients selected by him from the list of his social media address account via the social media platform, or composes the texts to the e-mail distributor individually.
The other issue to be clarified is how such invitation e-mails are to be designed in terms of header and other contents of the invitation e-mail, for instance by omitting visually distinct advertising elements in such a way that the invitation e-mail is no longer seen by the recipients as advertising for the social media platform.
The German Federal Court of Justice has not only found the “Friend finder” feature to be contrary to Sec. 7 para. 1 and 2 No. 3 UWG, but also objects to it as being a misleading commercial practice under Sec. 5 UWG. The commercial practice within the meaning of Sec. 2 para. 1, No. 1 UWG would be to provide the “Friend finder” feature to the user. The messages, apparently lacking in precision, which Facebook sent to its users at the time the complaint for the feature was made in November 2010, are said to have deceived the users about the nature and extent of the use of their personal e-mail contact data in violation of Sec. 5 UWG. Apparently, during the first step of the registration process for the import and utilisation of e-mail contact data, users only received the question “Are your friends already on Facebook?”, without an indication that the e-mail contact data imported by the user was to be evaluated, retained by Facebook, and that bulk invitation emails were then be sent to all contacts, including those not previously registered with Facebook. The relevant information was contained in another notice “Your password will not be stored by Facebook” in a manner not immediately perceptible to the user. The German Federal Court of Justice has thus taken the view that obscured notices of this sort are insufficient to pre-empt deception of the affected Facebook users.
Regardless of the admissibility of such marketing measures of the social media platform under competition law, the issue of data protection is to be assessed separately. In any case, the consent of the social media platform user to the processing and use of e-mail contact address data is mandatory for compliance with data protection law.
