Can Facebook put a price on my privacy?

 

Websites must provide an alternative that involves accessing content for free and without using users' personal data.

 

BY JORGE VELASCO , newspaper El Pais of Spain April 8, 2024

The European Data Protection Committee (CEPD) faces the business plans of large digital platforms such as Meta, X (formerly Twitter) or TikTok. A week ago the organization issued a statement on the use of cookies on websites and has put Meta, Mark Zuckerberg's multinational, in the spotlight. Their opinion was very blunt: the pay or consent strategy (accept cookies or pay) to monitor users and offer them personalized advertising is not a valid system in the Member States.

The European committee's ruling does not prohibit this business model. It is an opinion in response to the request from authorities in Norway, the Netherlands or Hamburg (Germany) to interpret whether the strategy of digital platforms has legal fit to continue to be applied in Europe. A reason to pull the ears of Internet pages and thus force them to offer a model that does not harm the privacy of users. At the beginning of last November, Meta launched a premium version for Facebook and Instagram users . Through this service, the multinational offers a monthly subscription (the price of which amounts to 12.99 euros per month) in exchange for eliminating advertising on the profiles of said social networks. However, there is fine print in their conditions. If you do not opt for the paid version, Meta assumes that people are giving their consent for those responsible for the websites to use their personal data to offer them personalized advertising.

Precisely, it was the Court of Justice of the European Union (CJEU) that gave rise to the controversy with a resolution that put an end to a controversy that pitted Meta against the German data protection authority, last July. The European court noted that websites could demand “adequate remuneration” from users as compensation in exchange for not extracting their personal data for advertising purposes.

It should be noted that the European data protection regulation does not prevent digital platforms from offering a payment service to access content. According to the regulations, companies must obtain users' consent to use their personal data in a “completely free and uncoerced” manner. And in cases where users do not give their consent, the platform must offer them other alternatives that do not necessarily involve paying a fee.

So, what are the conditions that Europe imposes on websites? Digital platforms must offer “a free option that does not require consent to process personal data and send advertising based on user behavior,” explains Víctor Salgado, managing partner of Pintos & Salgado, specialist in digital law and cybersecurity.

A valid option, points out Ruth Benito, head of the strategy and personal data management area at Elzaburu, would be to offer an application with a random advertising service that is less invasive for the privacy of users. “Another alternative would be to let the user themselves determine what their interests are or the subjects on which they would like to be shown promotions and advertising,” he proposes. And a third viable proposal, explains the expert, would be to pay only to remove the ads. In this way, “personal data would no longer be used as currency,” he points out.

Effects on the sector

The Spanish Data Protection Agency (AEPD) has already received some complaints against this practice, according to the experts consulted. If the complaints that reach the European data protection authorities are successful, digital platforms would have to find ways to offer a cookie policy that complies with European data protection regulations.

If the authorities of European countries affirm that pay or consent is not legal, there would be an earthquake in the advertising sector. As Marc Rius, expert in digital law and new technologies at Ribas Legal, explains, “no company will pay the same to impact people who coincide with its target audience as it does to advertise randomly to an unknown group.” If personalized advertising is curbed, the expert believes, the “fundamental right to business freedom” would be violated. In his opinion, the competent authorities would be forcing private companies that operate on the Internet to “provide a free service under data protection regulations” and that would be limiting “the economic progress of the European area.”

However, national data protection institutions have not yet banned this practice. Digital platforms still have a chance. “Those platforms that maintain the pure pay or consent model, without additional options, will be obliged to demonstrate that the adopted system does not force its users to accept cookies , but rather that they voluntarily consent to them,” says Ruth Benito. Despite this, the experts consulted foresee a complicated scenario for those platforms that want to maintain this system.

With the recent opinion of the CEPD and the complaints before the national authorities on the table, everything indicates that digital platforms will have to think about a new strategy. We have to wait for the decisions of the authorities of the EU member countries to see if the pay or consent system is, ultimately, contrary to data protection regulations.

Wave of complaints

The “consent or pay” model is not contrary (for now) to data protection regulations. But following the opinion of the European committee, experts do not rule out that users will start a wave of complaints. According to Georgina Viaplana, co-founder of Lawwwing, a platform in charge of advising websites on regulatory compliance, these actions will not stop the giant Meta. “Taking into account that the size of Meta's advertising business is 32.3 billion euros annually, it is more worthwhile for it to pay the sanctions imposed, no matter how large they may be,” he argues.