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That legal lock that allows Facebook and Instagram to make you pay for not using your data

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That legal lock that allows Facebook and Instagram to make you pay for not using your data

Of subscriptions to Facebook and Instagram, or rather access to them paid versions that Meta is about to launch (reserved for European users only), there has been much discussion in recent days. To those who only want their own navigation and interaction data on the platform (and not only) are used for convey targeted and profiled advertising, in short, tailor-made, all that will remain is to cancel your accounts or pay. You will need 10 euros for a desktop account or 13 for a smartphone (due to App Store or Play Store commissions) with 6 euros for each additional profile connected to the first. Important figures, comparable if not superior to those of audio or video streaming platforms that offer endless catalogs and unparalleled entertainment. In this case, you would pay to avoid targeted advertisingnothing more.

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The dangerous “pay for your rights” model

Much less, however, was said about the more technical aspect. That is, to understand by virtue of which legal foothold Meta may think of proposing a model that Noyb, the European Center for Digital Rights – a non-profit organization based in Vienna – defines with a certain effectiveness as “pay for your rights”. That is, “pay to see your rights guaranteed” as a citizen and user regarding the use of your data. As we had explained, the Californian giant that controls Facebook, Instagram and Whatsapp has studied this strategy to circumvent the new European privacy protection rules. Last December, in fact, the European Union deemed the ways in which Meta asks its users permission to show personalized advertisements based on their online activity to be inadequate. Simply accepting the terms of service is essentially no longer enough.

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A move, that of paid social media, which follows the litigation initiated by Noyb itself and in which the European Data Protection Board – the European body that controls the application of the GDPR, the General Data Protection Regulation – declared it illegal Meta’s previous “consensus bypass”. That is, proceeding with the simple terms of service. There Court of Justice of the European Union subsequently confirmed the EDPB’s position in the case C-252/21 Federal Cartel Office which pitted Meta and other companies against the German competition agency. The sentence arrived last July 4th. This means that the use of personal data by Meta for advertising and targeting purposes has essentially been deemed illegal in the European Union at least between 2018 and 2023.

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“Fundamental rights cannot be for sale. Will we also pay for the right to vote or the right to free speech? – commented Max Schrems, 36-year-old Austrian activist and lawyer known for his battles against Facebook and founder of Noyb – this would mean that only the rich can enjoy these rights, at a time when many people struggle to make ends meet. Introducing this idea into the scope of data protection law is an important change. We will oppose it in all courts.”

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The six words on which Meta relies for the “premium” versions

There’s a precise point in the ruling of principle affirmed by the European Court of Justice which allows Meta to proceed in this direction. According to the organization, it is about six words among the 18,548 of the ruling cited above which has precisely deemed Meta’s approach to the GDPR to be illegal since 2018. “Although the ruling has consistently established that all Meta’s current approaches to have a ‘legal basis’ for processing pursuant to Article 6 of the GDPR are illegal – we read in a Noyb note – paragraph 150 has been inserted a little phrase which states that there must be an alternative to ads’if necessary, upon payment of an appropriate fee‘”. That’s the lock pick on the basis of which, for the European version of its platforms, Mark Zuckerberg’s group is preparing the “premium” versionlet’s call them that. Although perhaps it would be better to call them “light”, that is, free from targeted advertising, obviously for a fee.

Noyb bluntly calls that subscription a “tax from 160 euros per year”. In fact, it is not an amount to be paid to (possibly, if desired) access some additional service or content but an amount to be paid if users do not want to consent to the exploitation of their personal data. Basically, an “opt out” at a high price. These six words are also included in a so-called “obiter dictum”, i.e. an additional consideration by a court – following the actual dispositive – which is not directly related to the case and it is usually not binding. In general, only the “conclusions” of CJEU rulings are binding. It is therefore unclear how the Court will behave when it has the case to analyze again.

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“The Cgue said that the alternative to the advertisements must be ‘necessary’ and the compensation must be ‘adequate’ – concludes Schrems – I don’t think 160 euros a year is what they had in mind. These six words are also an “obiter dictum”, a non-binding element that went beyond the central case submitted to the Court. For Meta this is not the most stable jurisprudence and we will clearly fight against this approach.”

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