‘Move fast and break things’:Unfair commercial practices and consent on Social Media

The Cambridge Analytica scandal revealed some of Facebook’s questionable practices of sharing user data with third parties. While this led to a lot of data protection concerns, other legal qualifications are equally important for the correction of commercial behaviour. This paper explores the applicability of the Unfair Commercial Practices Directive (UCPD) to the Cambridge Analytica incident. It adds value to existing scholarship in two ways: first, it pro-vides a detailed technical overview of the inner workings of Facebook as a social media plat-form by describing its Graph Application Pro-gramming Interface (API); and second, it ad-dresses a literature gap by discussing the ap-plicability of unfair commercial practices law to the social media industry in the light of Euro-pean harmonisation within the consumer pro-tection policy area, as well as between consum-er and data protection. In doing so, we argue that Facebook practices may be deemed unfair according to the UCPD, by either using point 20 of Annex I, by applying Articles 6-7 on mis-leading actions or omissions, or by using the general test in Article 5. We find that the test in Articles 8-9 on aggressive practices is not met