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In a significant development for user privacy, the European Union’s Data Protection Board (EDPB) has issued a strong opinion against Meta’s controversial “consent or pay” model for its social media platforms.

The EDPB stated that confronting users with a binary choice between consenting to their personal data being used for targeted advertising or paying a subscription fee is not compliant with the legal requirements for valid consent under EU data protection laws.

Key Points:

Binary Choice Violates User Consent

The EDPB emphasized that valid user consent must be freely given and informed. By presenting users with only two options – agreeing to personal data processing for targeted ads or paying a fee – Meta fails to obtain genuine consent. Most users simply consent to use the service without fully understanding the implications of their choice.

Complaints from Data Protection Authorities and Consumer Groups

The EDPB’s opinion followed requests from Dutch, Norwegian, and Hamburg Data Protection Authorities, as well as complaints filed by consumer and privacy organizations like BEUC and noyb. These stakeholders argued that Meta’s “pay or okay” model breaches key GDPR principles, including purpose limitation, data minimization, fair processing, and transparency.

Meta’s Subscription Model Deemed Problematic

In October 2023, Meta introduced a subscription model charging €9.99/month on the web or €12.99/month on mobile for EU, EEA, and Swiss users who wished to opt out of targeted advertising. The EDPB stated that in most cases, large online platforms cannot comply with valid consent requirements by offering users only this binary choice.

Meta Remains Defiant

Despite the EDPB’s opinion, Meta maintains that its subscription model is a legally valid way to seek user consent for personalized advertising, citing a 2023 ruling by the Court of Justice of the European Union. The company plans to continue engaging with the Irish Data Protection Commission, its lead EU regulator, and does not expect the opinion to impact its services.

Why It Matters

The EDPB’s opinion is a significant victory for user privacy advocates and a blow to Meta’s targeted advertising business model. It underscores the ongoing tension between the data-driven practices of large tech platforms and the stringent data protection regulations in the EU, particularly the GDPR.

We welcome that the EDPB has started a more nuanced discussion on ‘pay or okay’ and at least clarified that large platforms cannot use ‘pay or okay’. However, we are concerned that today’s first opinion is rather cautious and was based on limited facts. Once all the facts are on the table, we are confident that ‘Pay or Okay’ will be declared unlawful across the board. We know that ‘Pay or Okay’ shifts consent rates from about 3% to more than 99% – so it is as far from ‘freely given’ consent as North Korea is from a democracy. It is crucial to get all the relevant numbers for further decisions beyond Meta and larger platforms.

NOYB

For users, this development highlights the importance of being fully informed about how their personal data is collected, processed, and used for targeted advertising. It also raises questions about the fairness of “pay for privacy” models, which could disadvantage users who cannot afford subscription fees.

Moving forward, Meta and other large online platforms will need to reassess their consent mechanisms and data processing practices to ensure compliance with EU data protection laws. As the regulatory landscape continues to evolve, striking the right balance between user privacy, business interests, and the free, ad-supported nature of many online services will remain a critical challenge.

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