Meta (Facebook / Instagram) to move to a "Pay for your Rights" approach

Forced Consent & Consent Bypass
 /  03 October 2023
Meta "Pay for your Rights"

Meta (Facebook / Instagram) to move to a "Pay for your Rights" approach

The Wall Street Journal reported that Meta plans to move to a "Pay for your Rights" model, where EU users will have to pay $ 168 a year (€ 160 a year) if they don't agree to give up their fundamental right to privacy on platforms such as Instagram and Facebook. History has shown that Meta's regulator, the Irish DPC, is likely to agree to any way that Meta can bypass the GDPR. However, the company may also be able to use six words from a recent Court of Justice (CJEU) ruling to support its approach.

Pay for your Rights. In order to enjoy your fundamental rights under EU law, Meta is now proposing that you pay $14 a month, or a whopping $ 168 (€ 160) a year. This move follows successful litigation by noyb, in which the EDPB declared Meta's previous "consent bypass" illegal. The CJEU later confirmed the EDPB's view in C-252/21 Bundeskartellamt. This means that Meta's use of personal data has been illegal in the EU, at least between 2018 and 2023.

Max Schrems: "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."

6 words of an "obiter dictum" by the CJEU. For its approach, Meta appears to rely on six words in an 18.548 word judgement from earlier this year, which found that Meta's approach to the GDPR since 2018 was illegal. While the judgement consistently found that all of Meta's current approaches to having a "legal basis" for processing under Article 6 of the GDPR were illegal, a small sentence was slipped into the ruling at paragraph 150, which said that there must be an alternative to ads "if necessary for an appropriate fee". It seems that Meta is now relying on these six words of the judgement to introduce a fee of € 160 per year if users do not want to consent to the exploitation of their personal data. These six words are a so-called "obiter dictum", an additional consideration by a court that is not directly related to the case and is typically not binding. In general, only the "holding" of CJEU rulings are binding. It is therefore not clear if the CJEU will stick with these six words when Meta's new approach reaches the CJEU.

Max Schrems: "The CJEU said that the alternative to ads must be 'necessary' and the fee must be 'appropriate'. I don't think € 160 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."

Journalism opened the door for Big Tech? The idea of having a "Pay or Okay" approach was first developed by the Austrian liberal newspaper "Der Standard". It offered users the option to either agree to the processing of personal data for advertising or pay a fee of € 8,90 per month. This adds up to € 107 per year. It seems that data protection authorities (first in Austria, then in Germany and now also in France) saw this approach as an option to support journalistic websites that were suffering from the loss of advertising revenue to big tech platforms like Google or Meta. However, it seems that at least Meta is now planning to adopt this approach themselves. The GDPR does not foresee different rules for media companies when it comes to consent, which would allow "Pay or Okay" to be reserved for them only.

Max Schrems: "We see that regulators have allowed "Pay or Okay" models to support journalism in times when advertising revenue was sucked up by Google, Meta and the like. Now this loophole is used by Big Tech."