Facebook can stick with its real name policy for now, German court rules

It is the first step in a litigation process that can take years, the regulator said

Facebook can stick with its real name policy in Germany, and doesn't have to allow nicknames on its platform for now. The regulator that ordered Facebook to change it policy based its orders on inapplicable German law, a German court ruled.

Facebook was ordered to end its real name policy and permit the use of pseudonyms on its platform by the Office of the Data Protection Commissioner (ULD) for Schleswig-Holstein last year. The social network violated the German Telemedia Act, which allows users to use nicknames online, according to the ULD.

The orders were issued against Facebook in the U.S., and also Facebook Ireland, which is responsible for all Facebook's activities outside of the U.S. and Canada. Facebook, however, decided to fight the orders because it thought them without merit.

The Administrative Court of the State of Schleswig-Holstein ruled in favor of Facebook on Thursday. The ULD wrongly based its orders on German law which is not applicable in this case, the court spokesman Harald Alberts said in a news release on Friday.

Facebook's German subsidiary exclusively handles marketing and acquisition for the local market, and doesn't process any personal information, the court said. Because Facebook's main European office is in Ireland, that office is responsible for handling personal data so only Irish data protection law applies, the court said.

Therefore, the orders to stop the real name policy as well as the threat of a ¬20,000 (US$27,000) fine if Facebook does not comply with the orders are both unlawful, the court ruled.

"The decisions are more than amazing," said Thilo Weichert, privacy commissioner and head of the ULD, in a statement published on Friday. The court contradicts itself when it says that Facebook Germany is legally irrelevant because no personal data is processed there, he said. Facebook Ireland doesn't process any personal data either because that is handled by Facebook in the U.S., he said, adding that he did not understood why Irish jurisdiction was assumed.

If the decisions of the Administrative Court are upheld, that would result in a system in which IT companies would simply have to make a group structure like Facebook, establishing a main office in an E.U. member state with a low level of data protection, in order to escape oversight, the ULD said. "This was not the intention of European Union regulation," it added.

This ruling is not the end of the line for the ULD though. It can appeal the decision within two weeks with the Administrative Court of Appeals of the State of Schleswig-Holstein, and will certainly do so, the regulator said. The ULD expects the litigation to take months or even years to finish.

"We are pleased with the decision of the Administrative Court of Schleswig-Holstein. We believe this is a step into the right direction," said Facebook in an emailed statement. "We hope that our critics will understand that it is the role of individual services to determine their own policies about anonymity within the governing law." For Facebook Ireland, the company said, the relevant laws are the European data protection directive and Irish law.

Loek is Amsterdam Correspondent and covers online privacy, intellectual property, open-source and online payment issues for the IDG News Service. Follow him on Twitter at @loekessers or email tips and comments to loek_essers@idg.com

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