Decision imminent on legality of Meta's 'pay or consent'

The European Data Protection Board – which is made up of all of the EU’s data privacy chiefs – is this week set to issue its ruling on the legality of so-called “pay or consent” schemes, which forces consumers to cough up cash if they want to avoid being tracked for advertising purposes.

Concerns over ad-free subscription services were first aired back in November, when the Max Schrems fronted privacy organisation NOYB filed a complaint with the Austrian data protection authority over Meta’s scheme for Facebook and Instagram.

At the time, Schrems said: “Fundamental rights are usually available to everyone. There were times when [they] were reserved for the rich. It seems Meta wants to take us back more than 100 years. It’s neither smart nor legal – it’s just pitiful how Meta continues to ignore EU law.”

In February, the organisation was joined by 27 other civil rights groups in calling for the EDPB to issue a binding opinion on the matter.

Meanwhile, last week, the European Commission’s opened an investigation into the scheme under its new Digital Markets Act. Brussels says it is concerned that the binary choice imposed by Meta’s model may not provide a real alternative in case users do not consent, thereby not achieving the objective of preventing the accumulation of personal data by tech giants.

While the UK is not involved because Meta’s subscription service is not available here, other companies are launching similar services and the UK’s Information Commissioner’s Office is currently consulting on the legality of the plans.

Meta’s transition from its “free and always will be” ethos, to introducing paid subscription options was prompted by the EU’s top court ruling, which deemed the company’s monetisation of user data unlawful and forced the tech giant to look for alternatives.

Should the EDPB reject “pay or consent” many other large platforms would be forced to change their models, too, setting a strong precedent for safeguarding privacy rights not only within the EU but also globally.

EDRi policy advisor Itxaso Domínguez de Olazábal said: “These past few years, we’ve witnessed a concerning trend where data privacy, as it has happened with fields like work and health, increasingly becomes a luxury accessible only to the affluent.

“We’re often told that privacy is sacrificed for the ease of modern living, disregarding the fact that fundamental rights should be universal and not subject to mere convenience.

“EU institutions must put an end to the unjust data processing inherent in pervasive business models like Meta’s, which violate people’s fundamental rights.

“Until that time comes, our privacy will continue to be subject to Mark Zuckerberg and other big tech leaders’ discretion, while the ability to control our personal data remains a privilege accessible primarily to the wealthy.

“What the EU urgently requires for the next mandate is new legislation tailored to digital advertising, capable of effectively addressing the harms caused by the tracking-based advertising industry.”