On 21 January, the Italian Competition and Market Authority (AGCM) initiated a non- compliance procedure against Facebook Inc. and Facebook Ireland Ltd. (hereafter FB) for failing to implement a previous decision given by the same Authority dated 29 November 2018 where it had ascertained the incorrectness of the commercial practice to omit adequate information to consumer users when registering to the social network; moreover, the AGCM had also censured the methods of collection and the use for commercial purposes of the data provided by the users as well as the remunerative purposes underlying the service, FB vice versa emphasizing its gratuity.

That decision was based on the assessment that FB users’ data, given their profiling for commercial use and marketing purposes, acquire an economic value suitable for configuring the existence of a consumer relationship, even lacking a monetary consideration.

The decision was confirmed by the Italian Regional Administrative Court (TAR) as well.

In addition to sanctioning Facebook for 5 million euros, the AGCM had prohibited the further dissemination of the deceptive practice and had ordered the company to publish an amending declaration on the homepage of the its Italian

website, on the Facebook app and on the personal page of each Italian user.

However, despite the removal by FB of the motto “it’s free and it will be forever” from its home page, the Italian Competition and Market Authority has nevertheless found that the consumer who wants to register on the social network continues not to be informed with clarity and immediacy as to the collection and to the use of their data for remunerative purposes for the company. Neither did Facebook publish the amending statement.

Therefore, considering that the misleading conduct by FB remains despite the measures implemented and the company has continued in the contested commercial practice even after the expiry of the 90 day term granted by the Authority to comply with its decision, the AGCM has started a non-compliance procedure which may lead to the imposition to FB of an administrative fine of up to € 5 million.

We consider this initiative of the Italian authorities as a major step forward to protect the rights of the social media users and of consumers in general. Perhaps the relatively small magnitude of the fine imposed, in comparison with the size of Facebook and its financial resources should make us reflect on the weapons available to the public administration in Europe to counter illicit practices of these major multinational players.