Meta (Facebook, Instagram) switching to "Legitimate Interest" for Ads

Forced Consent & Consent Bypass
 /  30 March 2023
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Meta (Facebook, Instagram) switching to "Legitimate Interest" for ads after noyb win. noyb will take immediate action to stop this illegal practice

As reported by the Wall Street Journal, Meta (Facebook and Instagram) is switching from an illegal contract to an equally illegal basis "legitimate interests" for advertisement, after noyb won a series of complaints against them. noyb will take imminent action, as case law and guidance does not allow a company to argue that its interests in profits override the users' right to privacy.

Background. The GDPR allows the processing of personal data if a company complies with at least one of the six legal basis in Article 6 GDPR. Most of these six options are irrelevant for advertisement. While most companies require users to consent ("opt-in") for the use of personal data for advertisement, Meta (Facebook and Instagram) has tried to bypass this requirement by arguing that the use of personal data for ads is "necessary under the contract" when the GDPR became applicable in 2018. noyb instantly filed a series of complaints and ultimately won them before the European Data Protection Board (EDPB) in December 2022. Meta had until April to stop the practice.

One illegal practice replaced by next illegal practice. Now, Meta announced to give in against the pressure by noyb, but instead of switching to an "opt-in" system, like Google or Microsoft, they now try to argue the next unlawful option, by claiming that their "legitimate interest" to process user data would override the fundamental right to privacy and data protection of users. This was tried by other companies before, but rejected by the regulators multiple times (see e.g. the Italian DPA on TikTok or the Belgian DPA on the IAB TCF at para 441).

Max Schrems: "While some still argue that advertisement would override the fundamental rights of users, this is a minority view. We are not aware of anyone arguing that profiling and tracking at the scale of Meta just to get some ad clicks would fulfill that test."

noyb will take imminent action. noyb has already prepared for this option and will take imminent action once Meta made that switch on 5 April. For strategic reasons we will announce the details of our action at a later point in time.

Max Schrems: "Meta is switching one illegal practice for another illegal practice. noyb will take imminent legal action to stop this charade, as it is clear that Meta's Irish Regulator will be inactive yet again. This is an absurd game and we will stop it as quickly as possible. Like any other company, Meta needs to have a clear yes/no option for users, where they must actively say yes if they want to give up their fundamental rights.This system of using legitimate interest at least allows for opt-out, which makes it a slight improvement for users."

[This first reaction will be updated during the course of the day.]