Pay-or-Consent Ignores the Elephant-in-the-Room

European consumer bodies have united to file 8 local data protection complaints against Meta, claiming that "to ask consumers using Facebook and Instagram to give their consent to the processing of their personal data for advertising purposes or alternatively to pay a fee of up to €311 per year" does not cure various problems under the General Data Protection Regulation in the way it processes their customers' personal data. This also likely affects the status of training data that Meta has drawn from Facebook and Instagram to power it artificial intelligence systems. Previous complaints have resulted in changes to Meta privacy policies, but no real change in the underlying data collection and processing. Customers' investment of time and effort in their accounts and Meta's market dominance makes switching unrealistic. If the complaints are successful, it would suggest both free and paid-for functionality will be much more limited in future, but perhaps subscription revenue might make up for any lost ad revenue. Meta obviously disputes the claims.

The consumer bodies say that Meta collects way more personal data about its users than is necessary for the purposes claimed, such as performing its contracts with users, and this also fails to meet the GDPR requirement to minimise the personal data collected. 

In addition, there is too little transparency and explanation of the use or purpose for collecting each type of personal data, and the legal basis relied upon. That would mean Meta isn't clear what types of data must be processed for contractual purposes and which types are covered by user consent, for example. It would also mean that any consent relied upon was not fully informed and therefore was not validly given (similarly, it would also be unclear what type of data collection and processing you are paying a fee to avoid - and whether you had really avoided what you did not wish to consent to).

While this calls into question the ability for Facebook and Instagram can use their customer's personal data to power behavioural advertising and the related revenues, it would also taint the use of such personal data as training data for Meta's AI tools and systems.

The claims in more detail (which Meta obviously would deny strenuously) are:

• Meta’s personal data processing for advertising purposes lacks a valid legal basis because it relies on consent which has not been validly collected for the purposes of the GDPR; 
• Some of Meta’s processing for advertising purposes appears to rely invalidly on contract; 
• Meta cannot account for the lawfulness of its processing for content personalisation since it is not clear – and there is no way to verify – that all of Meta’s profiling for that purpose is (a) necessary for the relevant contract and (b) consistent with the principle of data minimisation; 
• It is not clear – and there is no way to verify – that all of Meta’s profiling for advertising purposes is necessary for that purpose and therefore consistent with the principle of data minimisation; 
• Meta’s processing in general is not consistent with the principles of transparency and purpose limitation; and 
• Meta’s lack of transparency, unexpected processing, use of its dominant position to force consent, and switching of legal bases in ways which frustrate the exercise of data subject rights, are not consistent with the principle of fairness.

Previous complaints have resulted in changes to privacy policies, to try to clarify the purpose and legal basis of processing, but the consumer bodies say this has not interrupted the underlying processing that they say is illegal. Meta would obviously dispute this. 

While it's tempting to think users can simply vote with their feet, the amount of time consumers have invested in their accounts - and Meta's market dominance - means that is not a realistic option.

If the complaints are successful, it would suggest both free and paid-for functionality will be much more limited in future, but perhaps subscription revenue might make up for any lost ad revenue...

What this space.