Facebook and Instagram’s “pay or consent” ad model violates the DMA, says the EU
Facebook and Instagram’s “pay or consent” ad model violates the DMA, says the EU
Meta could face fines of more than $10 billion.
Lots of other websites have already copied the "pay or consent" ad model
The relevant section of the DMA imposes restrictions on designated gatekeepers. It does not apply to websites that are not designated as gatekeepers.
That behavior might be questionable under the GDPR though.
Main issue comes from GDPR. When one uses the consent basis for collecting and using information it has to be a free choice. Thus one can't offer "Pay us and we collect less information about you". Hence "pay or consent" is blatantly illegal. Showing ads in generic? You don't need consent. That consent is "I vote with my browser address bar". Thing just is nobody anymore wants to use non tracked ads.....
So in this case DMA 5(2) is just basically re-enforcement and emphasis of previous GDPR principle. from verge
“exercise their right to freely consent to the combination of their personal data.”
from the regulation
- The gatekeeper shall not do any of the following:
(a) process, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper;
(b) combine personal data from the relevant core platform service with personal data from any further core platform services or from any other services provided by the gatekeeper or with personal data from third-party services;
(c) cross-use personal data from the relevant core platform service in other services provided separately by the gatekeeper, including other core platform services, and vice versa; and
(d) sign in end users to other services of the gatekeeper in order to combine personal data,
unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679.
surprise 2016/679 is..... GDPR. So yeah it's new violation, but pretty much it is "Gatekeepers are under extra additional scrutiny for GDPR stuff. You violate, we can charge you for both GDPR and DMA violation, plus with some extra rules and explicity for DMA".
I think technically already GDPR bans combining without permission, since GDPR demands permission for every use case for consent based processing. There must be consent for processing.... combining is processing, needs consent. However this is interpretation of the general principle of GDPR. It's just that DMA makes it explicit "oh these specific processing, yeah these are processing that need consent per GDPR". Plus it also rules them out of trying to argue "justified interest" legal basis of processing case of the business. Explicitly ruling "these type of processing don't fall under justified interest for these companies, these are only and explicitly per consent type actions".
- The gatekeeper shall not do any of the following:
Sucks to be them, LOL!
I believe you’re allowed to run ads on free tiers and offer to remove them by paying. You’re not however allowed to track people without their consent, thus you can’t force personalised ads on users, and say that the only way to get rid of the privacy invasion is to pony up.
The biggest Czech website (Seznam.cz) recently changed their policy and now force you to choose between: free tier with personalised ads or paid tier with anonymous ads. Yes, you're reading it right, even if you pay, it doesn't get rid of ads, they just stop tracking you. I have no idea whether it's legal but the EU should definitely take a look.
Edit: Ok, I think they only offer you this choice when you're using an account. I tried it in a private tab and it seems I can decline personalized ads there. Does that make it legal? If yes, then they're some sneaky bastards.
facebook and instagram? I don't know about the rest of Europe, but in Spain right now practically all newspapers/digital media have copied that model and you either accept cookies or pay
Also in Italy, but I think once the data protection agencies will get on it, it will be forbidden. It will take some time, but there is no way that's a legitimate use of consent.
This is the best summary I could come up with:
The European Commission writes in a preliminary ruling that the “pay or consent” advertising model that launched last year for Facebook and Instagram users runs afoul of Article 5(2) of the DMA by not giving users a third option that uses less data for ad targeting but is still free to use.
Regulators found in their investigation that Meta gives users a “binary choice” that forces them to either choose to pay a monthly subscription fee to get the ad-free version of Facebook and Instagram or consent to the ad-supported version.
Where Meta runs afoul of its rules, it says, is by not letting users opt for a free version that “uses less of their personal data but is otherwise equivalent to the ‘personalised ads’ based service” and by not allowing them to “exercise their right to freely consent to the combination of their personal data.”
“Our preliminary view is that Meta’s advertising model fails to comply with the Digital Markets Act,” wrote Margrethe Vestager, who leads the region’s competition policy.
“Subscription for no ads follows the direction of the highest court in Europe and complies with the DMA,” Meta spokesperson Matthew Pollard told The Verge in an email.
The commission asserted last week that Apple’s App Store “steering” policies don’t allow sufficient competition.
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