8 months ago
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Meta is facing a call from lawmakers in the European Union to scrap its controversial “consent or pay” tactic on Facebook and Instagram.
Currently, the company demands a per-account fee of €9.99/month on web or €12.99/month on mobile for users in the region wanting to avoid its tracking. No other choice is offered — meaning users wanting to continue accessing the two mainstream social networks for free are forced in accept a total loss of their privacy.
In its blog post from last year that Meta routinely points to to defend the tactic, it claims: “Subscription for no ads’ addresses the latest regulatory developments, guidance and judgments shared by leading European regulators and the courts over recent years. Specifically, it conforms to direction given by the highest court in Europe: in July, the Court of Justice of the European Union (CJEU) endorsed the subscriptions model as a way for people to consent to data processing for personalised advertising.”
However in an open letter, members of the European Parliament accuse Meta of manipulating users by offering a “false choice” between paying for an ad-free subscription or consenting to ongoing tracking and profiling through its surveillance-based ad targeting. The letter is addressed to Nick Clegg, the company’s president of global affairs — himself a former Brussels-based lawmaker — and has been signed by 36 MEPs, with representation spanning progressive, left-leaning and center/center-left political parties.
In the letter, the MEPs directly tackle Meta’s argument for charging a fee — pointing out that the CJEU only stipulated a charge for non-consenting users may be allowed if it is “necessary”.
“[N]o such fee is needed to fund your services,” they argue. “‘Pay or okay’ suggests a false choice between purchasing an ads-free experience or consenting to pervasive tracking of our online lives followed by surveillance-based advertising. There is a third possibility of presenting contextual advertising that does not require personalised tracking and surveillance. Studies suggest that contextual advertising is nearly as profitable as surveillance-based advertising.”
The MEPs go on to urge the company to scrap ‘pay or okay’ and “align your business with the principles of the GDPR, respecting the fundamental rights of EU citizens and residents”.
“The trajectory of privacy and data protection is at a critical juncture, and it is imperative that all stakeholders, including tech giants like yours, uphold their responsibilities to safeguard these rights. We stand firm in our commitment to preserving the integrity of the GDPR and ensuring that individuals retain genuine control over their personal data without coercion or discrimination,” they conclude in what reads like a direct appeal to Clegg, as a former MEP whose past work would have tasked him with upholding democratic values.
One of the signatories, Pirate Party MEP Patrick Breyer, summarizes Meta’s demand for a “privacy fee” as “economic coercion”.
“Meta’s approach fails to seek genuine consent as required by the GDPR [General Data Protection Regulation], coercing users into acceptance by making privacy unaffordable,” he said in a statement accompanying the letter’s release. “The reason Meta insists in an unlawful consent model is because its business model is dependent on pervasive tracking. We need a true alternative to tracking and targeted advertising, with approaches such as contextual advertising.”
The MEPs’ call for Meta to respect EU law and abandon the cynically self-serving mechanism comes as the company faces scrutiny from European Commission enforcers — who, earlier this month, asked it to send proof of the legality of the pay-or-be-tracked choice. The bloc’s Digital Services Act (DSA), which applies to both Facebook and Instagram, requires platforms to get consent for use of people’s data for ads and mandates that withholding consent must be as easy as providing it.
A series of GDPR and consumer protection law complaints have also been filed since Meta’s shift, last fall, from (unlawfully) claiming a legitimate interest in pervasively tracking users to rolling out the ad-free subscription in a fresh bid to keep tracking users.
The cost Meta is charging for the ad-free subscription — which the MEPs suggest is designed to make privacy unaffordable — is one of the issues the complaints target. Such as privacy advocacy not-for-profit noyb’s first complaint filed back in November.
For its part, Meta claims the fee is in line with other mainstream digital subscriptions. “As we have previously discussed, our current pricing is firmly in line with similar services offered by our competitors (e.g. YouTube Premium),” said company spokesman Matthew Pollard.
However, as we’ve pointed out before, the comparison is bogus given Meta gets the content that fills Facebook and Instagram for free from users. Its ad-free subscription is not also selling access to premium and/or professional content, as is the case with YouTube Premium (which bundles access to music streaming and original movies); or indeed with news publications, which were the first types of sites to push the ‘pay or okay’ tactic, as they employ journalists to carry out reporting and produce professional content.
noyb has subsequently filed another GDPR complaint against Meta’s model, focused on how easy/not is it for people to withdraw consent. There are also a series of consumer protection complaints in the mix — which argue Meta’s approach breaches EU consumer protection rules.
Completing the circle, consumer right groups have filed as series of GDPR complaints against Meta’s ‘pay or okay’ model, too.
While some EU data protection authorities may have been reluctant to sanction struggling media outlets for pushing ‘pay or offer’ on visitors to their websites, the adtech giant Meta is a very different kettle of fish, as guidance put out by some watchdogs already underlines.
The European Data Protection Board is due to issue an opinion on ‘pay or okay’ in the coming weeks — which could lay down some defacto red lines so will certainly be one to watch.
What the Commission does in this area will also be interesting as it moves up the gears of DSA enforcement. Just this week the EU sent Microsoft-owned LinkedIn a request for information related to its use of data for ad-targeting. As well as requiring platforms obtain consent to use people’s data for ads, the regulation outright bans use of sensitive data for ad-targeting — and the Commission’s questions to LinkedIn focus in that area.
