Is Facebook's Friend Finder unlawful?

Social media is designed to bring friends together. But may the existing contacts of a new user be read out for this purpose? The Regional Court of Appeal Berlin (Kammergericht) has now established criteria.

The central question is how the user must be guided through the application when activating the Friend Finder. In the case decided by the Regional Court of Appeal Berlin (Kammergericht), it concerned the registration process practiced by Facebook at least on 2/3 November 2010.

The user was asked before using the Friend Finder whether his friends were already on Facebook. In reality, however, Facebook not only copied addresses of Facebook users, but also of contacts that were outside the network and suggested to the registering user invitation emails regarding these contacts.

The Court's Decision

The Regional Court of Appeal Berlin (Kammergericht) established in its judgment of 21.01.2014 that the user was not adequately informed about the scope of the data import when using the Friend Finder. Rather, the information was designed to cause the user to disclose his entire email account to Facebook. The court assessed the design of the (former) Friend Finder as a deliberate deception of the user, to whom it was falsely suggested that he was only searching for users already befriended on Facebook.

For the user was invited to search through his email account under the heading "Are your friends already on Facebook?" The other references: "Many of your friends might already be on Facebook. Searching through your email account is the quickest way to find your friends on Facebook" also referred to friends already using Facebook. Even the reference "Invite your friends and family members to Facebook" permitted no other assessment, as the user had already formed the expectation to search only for contacts registered with the network.

The consequence for the Regional Court of Appeal Berlin (Kammergericht) is that the invitation emails sent to users outside the network constituted unlawful advertising emails from Facebook. This was so even though the invitation emails were sent in the name of the user, the user appeared as the sender, and Facebook merely provided technical assistance in their dispatch. Furthermore, the court also saw in the described design of the Friend Finder a breach of the disclosure obligations under data protection law for obtaining effective consent to the collection and processing of data.

Conclusion

The decision of the Regional Court of Appeal Berlin (Kammergericht) shows that in the Friend Finder application, the corresponding information to users must be precisely formulated. Otherwise, costly cease-and-desist letters and injunctive proceedings threaten.