Meta looks set to face more legal challenges in Europe, with the European Data Protection Board (E.D.P.B.) publishing new guidance which could force Meta to make its apps to all EU users for free, whether they consent to Meta using their data for ad targeting or not.
In November last year, Meta implemented a new, ad-free subscription offering for EU users, which provides access to Facebook and Instagram for €9.99 per month (when purchased on the web), and enables EU users to opt out of Meta’s data tracking for advertising purposes.
The program is designed to comply with the requirements of Europe’s GDPR, which stipulate that all large online platforms need to provide an opt-out of personal data tracking, if users choose. But that also restricts Meta’s core business, and as such, Meta has argued that it can only comply with this regulation if it’s still able to generate revenue from users who do choose to opt-out.
Which makes sense, and seemingly aligns with the letter of the law within the updated GDPR requirements. But privacy campaigners say that Meta’s proposal actually undermines the focus of the GDPR, and its protections against data capitalism, which has prompted further examination of Meta’s approach, in alignment with the new rules.
And now, the EDPB has agreed that Meta’s approach is not in line with the intention of the law, which could see Meta forced to re-think its strategy.
The core of the EDPB’s finding lies in “valid consent”, which it believes cannot be freely given when users are presented with a choice of either conceding to data use, or paying.
As per the EDPB:
“In most cases, it will not be possible for large online platforms to comply with the requirements for valid consent if they confront users only with a binary choice between consenting to processing of personal data for behavioral advertising purposes and paying a fee. The offering of (only) a paid alternative to the service which includes processing for behavioral advertising purposes should not be the default way forward for controllers.”
The EDPB says that providers should look to provide users with an equivalent alternative which doesn’t require a fee.
“If controllers choose to charge a fee for access to the ‘equivalent alternative’, controllers should consider also offering a further alternative, free of charge, without behavioral advertising, e.g. with a form of advertising involving the processing of less (or no) personal data. This is a particularly important factor in the assessment of certain criteria for valid consent under the GDPR. In most cases, whether a further alternative without behavioral advertising is offered by the controller, free of charge, will have a substantial impact on the assessment of the validity of consent, in particular with regard to the detriment aspect.”
It’s a somewhat bizarre ruling, which suggests that Meta has to look to provide free services to users who will not, or cannot: “especially in cases where the service has a prominent role, or is decisive for participation in social life or access to professional networks.”
Which sounds more like they view Meta as a utility, and if Meta’s apps are a public good, and a utility as such, then they should be government-funded, as opposed to forcing a corporation to provide its services for free, while limiting its business.
Which is really the core of the argument. Meta’s initial response makes sense because removing data tracking will impact its business, and it therefore should have a means to recoup that cost, under free market principles. But the EDPB is arguing that large online providers should not be allowed to offer “consent or pay” models, because it’ll limit who can use these apps.
The EDPB also notes that personal data cannot be considered as a tradeable commodity under EU laws. And in that sense, there could be grounds for revision, but the finding, as it stands, seems a little unclear on how, exactly, Meta can be expected to meet such demands without essentially taking a financial hit as a result.
As such, you can expect Meta to appeal the ruling, which, it’s important to note, is not a law or requirement as yet, but will be considered within future revision proposals by EU regulators.
Meta has already sought to reduce resistance to its ad-free subscription offering, by halving the price of the package to make it more palatable for EU officials. That may help to counter concerns that it would force some users to give up its apps, because they can’t afford to pay, but still, the underlining principle is that Meta should be allowed to conduct its business, and should not be impacted by market rules that restrict such.
Yet, if you were to argue that Meta is using personal data as a commodity in this sense, that may complicate the principle. But it does seem like Meta’s approach will eventually prevail, albeit at a lower cost than it had originally intended.
