Embedding a „Like“ Button is not unfair competition.

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For the first time a German court had to decide on the question if the use of the Facebook “Like” button on an internet sales page complied with the rules against unfair competition, if the button was placed without indicating that data of logged-in Facebook users would be transmitted to Facebook.

The decision by the Regional Court of Berlin dated 14 March 2011 meanwhile published in German is of great interest with respect to the question of infringement of (German) unfair competition laws.

Background of that decision was that the claimant filed a restrictive injunction to obtain the omission of the embedding of the Facebook “Like” button on the website of a competitor, who offered similar goods online as the claimant. The embedding of the Facebook “Link” button leads to the result that data of logged-in Facebook users are transferred to Facebook when visiting the respective website of the competitor, even if they do not click on the “Like” button. It was not clarified to what extent if the same happened to data of Non-Facebook-users or such Facebook users that were not logged-in.

The claimant sustained that it was unfair competition to embed this button without informing the website visitors that a transferal of data to Facebook could take place. The missing indication of the data transfer according to the claimant infringes § 13 of the German Telemedia Act (TMG) where the obligation of a service provider is codified to inform about what kind, to what extent and for what purpose any collection and use of data, is provided.

According to the Court, § 13 TMG however is not a law that indicates a rule of conduct in business. For this reason a violation of the obligations provided in § 13 TMG does not fall under the provision ruled in § 4 Nr. 11 of the German Unfair Competition Law (UWG). § 4 Nr. 11 UWG rules that a violation of a law that has also the purpose to regulate the behavior of competitors on the market is to be considered unfair competition. According to the decision practice such law must at least have the function to create equal possibilities to the competitors. This requires a secondary market related purpose of protection and this purpose has to be in the interest of the competitors. § 13 TMG on the contrary does not have any protective purpose for the competitors, but, for the content users only.

Note: The Court did not decide on that question under the aspect of data protection - only under the aspects of unfair competition laws.

Decision dated 14 March 2011 by Regional Court of Berlin (Official Court Ref: 91 O 25/11 )