Belgium: Brussels Court Orders Facebook To Cease Registration Of Personal Data Of Non-Facebook Users

Last Updated: 21 December 2015
Article by Thibaut D'hulst

On 9 November 2015, the President of the Court of First Instance of Brussels (the "Court") ordered Facebook, Inc., Facebook Belgium SPRL and Facebook Ireland Limited ("Facebook") to cease the use of "datr" cookies for non-Facebook users under forfeiture of a daily penalty payment of 250,000 EUR.

The case had been brought by the Belgian Privacy Commission (Commissie voor de bescherming van de persoonlijke levenssfeer/Commission de la protection de la vie privée – the "Privacy Commission") following an earlier recommendation regarding Facebook's use of personal data (See, VBB on Business Law, Volume 2015, No. 5, p. 8-9, available at

The case hinges upon Facebook's use of a specific cookie, called the "datr" cookie, which Facebook argues to be necessary for the security and protection of its services. By contrast, according to the Privacy Commission, the installation and use of this cookie on the devices of non-Facebook users infringes data protection rules and gives Facebook insight into the Internet use of non-registered users. An investigation conducted at the request of the Privacy Commission indicates that the cookie is kept on the device for two years. The Privacy Commission contended that the use of the cookie infringes the Law of 8 December 1992 on the protection of personal data (Wet tot bescherming van de persoonlijke levenssfeer ten opzichte van de verwerking van persoonsgegevens/ Loi relative à la protection de la vie privée à l'égard des traitements de données à caractère personnel) (the "DPL").

Application of Belgian Data Protection Law

The President of the Court first examined the application of the Belgian data protection legislation and the jurisdiction of the Belgian courts.

Facebook had argued that Facebook Ireland Limited should be considered as the "controller" and that this is decisive for determining the applicable national law under Article 4(1)(a) of Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (the "Data Protection Directive").

However, the President of the Court held, based on the Google Spain judgment of the Court of Justice of the European Union of 13 May 2014 (See, VBB on Business Law, Volume 2014, No. 5, p. 6, available at, that Article 4(1)(a) of the Data Protection Directive must be read to mean that the Belgian data protection rules apply if the activities of the local establishment of Facebook are inextricably linked with the activities of the data controller. In the case at hand, the President of the Court found that Facebook Belgium SPRL qualified as a local establishment and was responsible for specific commercial interests of Facebook, such as marketing and lobbying activities, and that therefore its activities are inextricably linked with the activities of the data controller, i.e., Facebook Inc.

The President also considered that it is not required that the personal data is processed by the Belgian establishment for Belgian data protection laws to apply. It is sufficient that the personal data is processed 'in the context of' the activities of this Belgian establishment. In that case, Belgian law applies, even if the actual processing is carried out by an affiliated company outside Belgium. If a company has various establishments in different Member States, the Data Protection Directive states that the controller must comply with each applicable national law. Consequently, the Court concluded that Belgian law applies, the Privacy Commission is competent and Belgian courts have jurisdiction to rule over the case at hand.

Urgency and Public Order Nature of Data Protection Laws

Second, in order to bring summary proceedings, the Privacy Commission had to show urgency. The President held that the urgency requirement is always met if the action relates to the infringement of fundamental rights and freedoms. The President also noted that this violation concerns a very large group of individuals and a significant number of websites.

Facebook's Compliance with Data Protection Principles

On the substance of the proceedings, the President of the Court determined that the combination of the cookies, IP-addresses and visited websites allows Facebook to monitor the surfing behaviour of the individual internet user.

The President of the Court considered that under Article 129 of the Law of 13 June 2005 on Electronic Communications (Wet betreffende de elektronische communicatie/Loi relative aux communications électroniques) the installation and use of cookies requires, as a rule, the prior consent of the user. The President added that the exceptions for which consent is not required did not apply to the "datr" cookie.

The President determined that a banner which Facebook recently posted to explain its cookie policy does not give rise to informed consent. In addition, a one-time visitor of the domain who is not a Facebook user cannot be considered to have explicitly solicited a Facebook service when he or she later visits a social plug-in of a third-party website.

The President went on to consider alternative grounds for consent and concluded that none of these grounds could be relied on by Facebook to install and use "datr" cookies. For instance, non-Facebook users do not have any kind of agreement with Facebook and therefore the processing of the information cannot be deemed to be necessary for the execution of the agreement or as a result of a legal obligation.

Facebook also argued that the processing was permitted because it is needed to pursue the legitimate interest of a secure service under Article 5, f) of the DPL. However, the President of the Court rejected that argument as well and held that any security consideration is primed by the fundamental right to privacy. This is because the processing on the basis of the "legitimate interest" criterion is only possible if this interest is not outbalanced by the need to protect the data subject's fundamental rights. 

In the absence of a ground for legitimate processing, the President ruled that use of "datr" cookies falls short of Articles 4 §1, 1° and 4 §1, 2° of the DPL. 

Facebook was thus held to process personal data without being able to present a specified, explicit and legitimate purpose. It thus violated the DPL and the Law on Electronic Communications. Facebook was therefore ordered (i) to stop placing "datr" cookies on devices of non-registered Facebook users who visit Facebook websites without prior information to such data subjects; and (ii) stop collecting "datr" cookies that are installed through social plug-ins on third party websites. Taking account of the public order nature of data protection rules and the large number of data subjects and websites involved, the President of the Court imposed a daily penalty of EUR 250,000 if Facebook fails to end the infringement.

Facebook plans to lodge an appeal against this judgment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions