After Meta had to pay a record fine for violating European's right to privacy, the Silicon Valley tech giant now announced that starting in November users over 18 will be able to subscribe for a fee to use our products without ads. Depending on where you purchase it will cost €9.99/month on the web or €12.99/month on iOS and Android.
Facebook and Instagram now want to offer a paid version - without tracking or personalized ads. But is it even possible that Meta requires users to pay for their right to privacy?
The right to privacy is a fundamental Human Right enshrined in the Universal Declaration of Human Rights (Article 12), the European Convention of Human Rights (Article 8) and the European Charter of Fundamental Rights (Article 7).
Max Schrems, the famous lawyer who sued Meta multiple times for privacy violations under the GDPR, commented on the plans ahead of the announcement:
"Fundamental rights cannot be for sale. Are we going to pay for the right to vote or the right to free speech next? This would mean that only the rich can enjoy these rights, at a time when many people are struggling to make ends meet. Introducing this idea in the area of your right to data protection is a major shift. We would fight this up and down the courts."
Can Meta actually charge you for respecting your human right to privacy?
Meta uses one of the recent EU judgements to justify its approach for offering a paid for service, sans personalized ads.
In this 18.548 word long judgement, six tiny words were included saying there must be an alternative to ads "if necessary for an appropriate fee". While these six words are a so-called "obiter dictum", an additional consideration by a court that is not directly related to the case, is typically not binding, Meta relies on this tiny sentence.
Schrems of NOYB is already preparing to fight this new approach by Meta to circumvent the GDPR:
"The CJEU said that the alternative to ads must be 'necessary' and the fee must be 'appropriate'. I don't think € 120 a year is what they had in mind. These six words are also an 'obiter dictum', a non-binding element that went beyond the core case before the CJEU. For Meta this is not the most stable case law and we will clearly fight against such an approach."
Robert Bateman has collected some great legal excerpts to explain in detail why it is legally unlikely that Meta's approach of asking people to pay for their privacy is going to work.
These excerpts from the European GDPR show clearly that consent must be "freely given" and "easy to withdraw".
It's questionable if this is the case when you need to pay to withdraw consent from tracking and personalized ads.
European Data Protection Board states that the European controller that checks whether data privacy protections of the company is inline with the GDPR must show that withdrawing consent does not lead to "any costs" and that it is possible to withdraw consent without detriment.
So, we need to ask: Can Meta ask you to pay for your right to privacy?
The legal situation is not one hundred percent clear. While the GDPR law says that consent must be freely given and that there must not be any cost involved upon withdrawal, the six words in the recent EU court ruling do say that an alternative version must be offered to European "if necessary for an appropriate fee".
However, legal experts agree that the GDPR itself must always be considered as the strongest source. The six tiny words, the "obiter dictum", are not legally binding and do not weigh as much as the GDPR.
It seems like the European court cases against Meta will keep coming. The non-profit NOYB is already preparing a new case against Meta should they follow through with their announcement to charge Europeans for respecting their right to privacy.
In our personal opinion it would be okay if Meta required users to pay for an ad-free service. However, the free version of Meta - the one including ads - must also respect people's right to privacy and if people revoke consent for personalized ads, only general ads without tracking and personalization would be shown.
In any case, we are curious to see how the case Meta vs. GDPR will continue. 🍿
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