VG Cologne: Federal government may continue to operate Facebook fan page

The Federal Press Office may operate a Facebook page for the German government and does not have to ensure that visitors to the page consent to their data being processed. This was decided by the Administrative Court of Cologne on Tuesday, thus upholding the actions brought by Meta and the Federal Press Office (case no. 13 K 1419/23).

The proceedings concerned a fundamental question of data protection law: to what extent are operators of a Facebook fan page responsible for ensuring that users give their informed consent to the processing of their data? In February 2023, the then Federal Data Protection Commissioner Ulrich Kelber prohibited the Federal Press Office (BPA) from operating the fan page, partly to finally have these fundamental questions clarified in court.

Is the federal government responsible?

Kelber took the view that the BPA was responsible as the operator of the page and must be able to prove that the principles of data protection law are being adhered to. Because it could not do this, the Facebook page was being operated without a legal basis and had to be shut down.

The BPA, on the other hand, considers Facebook to be solely responsible for data processing and continued to operate the Facebook page. The office, which organizes the federal government's public relations work, ultimately filed an appeal against the ban with the Cologne Administrative Court.

After a hearing lasting several hours last Thursday, the judges at the Administrative Court of Cologne still needed some time to discuss the matter. However, it is now clear that the Federal Government has won the court case against the Federal Data Protection Commissioner at first instance and may continue to operate the Federal Government's Facebook fan page. An appeal against the ruling is possible.

In the decision that has now been issued, the judges follow the view of the German government that the operation of the fan page alone would not trigger liability for cookies set when the page is accessed if the operator's cookie banner is inadequate in terms of data protection law.

No separate consent required

Meta and the Federal Press Office are not obliged to obtain separate consent – for example, with a second cookie banner – according to the court in its statement. They were also not jointly responsible for the objectionable data processing, but only the operator group. The court has not yet published the text of the decision itself; according to a spokesperson, this will be done in the coming days.

The ruling is currently being analyzed by the Federal Commissioner for Data Protection. “We welcome the speedy decision by the Cologne Administrative Court and the admission of the appeal,” explained a spokesperson for the BfDI. It is unlikely that the Federal Government will appeal as the plaintiff following the ruling by the judges at the Cologne Administrative Court.

(nie)