Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein
Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein

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OVG Schleswig-Holstein: For Facebook Germany data protection law does not apply

By orders of 22.04.2013, the Schleswig-Holstein Administrative Court of Appeals (OVG) decided on appeals by the Unabhängiges Landeszentrums für Datenschutz (ULD, en: Independent Centre for Privacy Protection) Schleswig-Holstein against decisions by the Administrative Court (VG) Schleswig under which the data processing in Facebook in relation to German users is not subject to German, but only Irish data protection law (Az. 4 MB 10/13, 4 MB 11/13). Hereby, the provisional enforcement of ULD orders against Facebook Inc./USA and Facebook Ireland Ltd. to allow anonymous or pseudonymous use under the German telemedia law was legally repealed. This was justified by OVG by taking Facebook Ireland Ltd. as a branch of Facebook in Europe, different from Facebook Germany GmbH which was working for the group only in the areas of ad sales and marketing.

The non-actionable decision of OVG has the consequence that German data protection law can not be directly applied to Facebook. The head of ULD Thilo Weichert is disappointed about the decisions: “The court allowed that the applicability of the strict German data protection law is undermined by clever internal organization in an IT company. It is also regrettable that the Basic Law reasoning of its decisions advanced by ULD was not taken up by the court. For both, users and German companies which have to comply with the German data protection standards it is difficult to understand why an offer for the German market may ignore these standards. However, we must accept this decision and will therefore comply with the objection of Facebook against our orders in the main proceedings.   

As regrettable as the OVG decisions may be for data protection, they have brought a high court testimony in the highly controversial question of law which data protection law is applicable to international social networks. Since December 2011, legal proceedings are still pending before the VG Schleswig addressing whether the German data protection law is at least applicable to German organisations, which operate a Facebook fan page. On this issue the OVG decisions contain no statements. It is hoped that to get more legal clarity these proceedings will be undertaken soon.

The OVG decisions should be understood by politics as a signal that at European level the Data Protection Regulation currently under discussion must not only enshrine a high standard of data protection, but also assure sufficient enforcement actions. Otherwise, Facebook will by means of organizational tricks keep trying to escape an effective data protection control. We are currently experiencing that international IT companies escape payment of taxes by means of a sophisticated internal organization. Politics must prevent the development of both, tax havens as well as privacy havens – i.e. areas without effective privacy supervision.”

For the OVG decisions as well as the principal Grounds of appeal of ULD on which the decisions are based (in German), please visit


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