European Privacy Group Takes Stance on Meta’s Controversial ‘Consent or Pay’ Strategy

Incoming guidance by an expert steering body for European Union data protection law could have massive consequences for Meta’s surveillance advertising business model. Large platforms such as Facebook and Instagram may no longer be able to force users into a “binary” consent choice, according to a Wednesday report by Politico. The news was confirmed by two sources familiar with the decision.

However, this means that Meta’s current strategy of “consent or pay” will no longer be acceptable in the region.

The European Data Protection Board (EDPB) has been discussing the issue of “consent or pay” this week after being asked to provide an opinion on the matter by concerned data protection authorities. A spokesperson for the EDPB told TechCrunch that the opinion was adopted on Wednesday and will be published later today, but did not divulge any details. The spokesperson stated, “We are not able to comment on the content of the opinion until it is published.”

Following the overturning of two legal bases used by Meta for processing user data for ads, the adtech giant launched a controversial subscription offer in the EU last year. They claimed that this option was valid consent under the General Data Protection Regulation (GDPR), which governs the handling of personal data and requires a legal basis for processing such information.

However, this choice is a binary one for EU users: either consent to targeted advertising using personal data or pay a monthly fee for ad-free versions of the social networks. The original fee was €13 per mobile account, but it was later reduced by half. Nevertheless, privacy advocates and consumer rights groups have continued to criticize the approach, arguing that the flaws in “consent or pay” go well beyond just the price.

Both lawmakers and the European Commission have also become involved in the debate. The Commission is investigating whether Meta’s use of this mechanism complies with the Digital Markets Act, which requires platforms to obtain consent for processing user data for ads. They have also questioned Meta on their claims of consent under the Digital Services Act.

The EDPB’s opinion is crucial in determining whether Meta’s approach is compliant with the EU’s long-standing data protection framework. Therefore, the full opinion will be closely examined once it is made public.

According to Politico, part of the EDPB’s decision states that it is unlikely for large online platforms to obtain valid consent if they only offer a binary choice between consenting to personal data being processed for behavioral advertising or paying a fee.

Privacy rights nonprofit noyb, which has been fighting against “consent or pay” tactics on EU websites for years, has heralded this development as a win against Meta. They also cautioned that they will need to study the full opinion in detail once it is available.

noyb’s founder and chairman, Max Schrems, stated that “Meta no longer has any options in the EU. They must now offer users a genuine yes/no option for personalized advertising.” Schrems also suggested that a third option, such as not tracking or targeting users, could involve Meta generating revenue from sponsored posts or other kinds of paid content.

We have reached out to Meta for comment on this matter but have not yet received a response.