Meta must stop charging for people’s right to privacy

Ahead of a crucial opinion by the European Data Protection Board (EDPB) — a grouping of the EU’s chief privacy regulators — on Meta’s plan to charge for privacy, the European Commission has opened an investigation that hopefully will cast light on the unlawfulness of Meta’s so-called “Pay or Okay” model, which has become the talk of the town in Brussels.

Meta’s transition from its long-standing and proudly-promoted “free and always will be” ethos, to introducing paid subscription options in November 2023, sparked shock waves. 

This shift was prompted by the EU’s top court ruling, which deemed the company’s monetisation of user data unlawful and compelled the corporation to look for alternatives.

Meta’s “Pay or Okay” approach is its last-ditch effort to rationalise extensive commercial surveillance. Forcing people to pay for their privacy, however, is not providing them with a real consent choice. 

The alternative to paying presented to users seems simple: just click “ok” — and agree to be subjected to tracking and profiling. This is far from ideal when it comes to data protection, which is a fundamental right.

The EDPB’s upcoming decision on 16 and 17 April could disrupt the dangerous normalisation of such business models and invasive practices. 

An opinion rejecting “Pay or Okay” regarding large platforms would set a strong precedent for safeguarding privacy rights not only within the EU but also globally.

‘Pay or Okay’ is neither legitimate nor lawful

Pressure against Meta and its model is mounting from all directions, driven by numerous reasons. 

The digital rights community is concerned about Big Tech companies undermining privacy as a paramount fundamental right and their repeated attempts to commodify it. 

Recently, two open letters supported by a number of civil society organisations have voiced these concerns and urged the EDPB to take a decisive stance against the “Pay or Consent” model.

These past few years, we’ve witnessed a concerning trend where data privacy, as it has happened with fields like work and health, increasingly becomes a luxury accessible only to the affluent. 

We’re often told that privacy is sacrificed for the ease of modern living, disregarding the fact that fundamental rights should be universal and not subject to mere convenience.

Furthermore, the “Pay or Okay” model attempts to carve out a significant exemption in the enforcement of the General Data Protection Regulation (GDPR), the EU law that gives people more control over their personal data and requires organisations to handle it responsibly. 

The subscription-based model conflicts with the requirement that consent for accepting cookies must be freely given and genuine.

“Pay or Okay” coerces people into accepting the use, sharing, or sale of their personal data, compromising the principle of free, informed, and unequivocal consent. 

As a result, individuals are deprived of genuine control over their data. You either pay directly for privacy or you forfeit your privacy – consequently paying for this supposedly free access with your sensitive data. 

There is no other option available for users who want to decline the processing of their personal data without subscribing to a paid service. 

‘Take it or leave it’ approach is unfair and discriminatory

An open letter to Meta drafted by Members of the European Parliament further emphasised this aspect of the problem with “Pay or Okay”.

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The discriminatory impact of “Pay or Okay” effectively perpetuates barriers to digital access and control over personal data by imposing a harmful “take it or leave it” approach. 

Millions of people depend on these platforms for day-to-day activities, from professional opportunities to the most mundane of actions in an increasingly digitalised society. Meta’s reframing of privacy and data protection as purchasable commodities consequently leads to negative societal impacts, deepening social inequalities and perpetuating discriminatory exclusions.

Withdrawing consent should be as straightforward as granting it. However, with “Pay or Okay,” reversing consent is not simple, as users encounter challenges in locating the opt-out mechanisms, amid convoluted interfaces and dark patterns, digital tricks that try to manipulate you into doing what the website or app wants, rather than what’s best for you.

The European Commission’s initiation of an investigation under the Digital Markets Act (DMA) against Meta has explicitly highlighted that the binary choice forced upon users may not offer a genuine alternative if they refuse to consent, potentially perpetuating the accumulation of their personal data. 

Furthermore, the Commission has pointed out that the payment aspect of the “Consent or Pay” model might be interpreted as a degradation of service conditions. That means Meta is using its significant market power to deliberately lower the quality of its services to its users a behaviour that also violates the fairness principle set in the GDPR.

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The questioning of “Pay or Okay” also comes from European consumer organisations, which have filed several complaints with Data Protection Authorities and the European Commission. 

Their stance not only focuses on practices depicted as unfair, deceptive, and aggressive but also on the predatory ad-tech business model at the heart of it all.

Meta bargains fundamental rights to keep profiling users

Faced with rising pressure and openly acknowledging the need to appease regulators, Meta has conceded the validity of concerns. 

However, instead of discontinuing the model altogether, Meta has suggested lowering the price of subscriptions and continuing to leverage its dominant social networks, which profit exclusively from the personal data of users in Europe and worldwide.

Meta and similar entities operate under the assumption that most users will be disinclined to pay a fee. 

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Yet, it remains evident that subscriptions do not constitute the main revenue stream for major tech platforms, which primarily generate their income by selling space for advertising. 

Alphabet and Meta consistently generate over $200 billion (€187.6bn) in global ad revenue annually and in 2022, ad sales accounted for 98% of Meta’s revenue. This underscores the perils of commercial surveillance as a means of maximising profits.

Another perilous assumption Big Tech is taking advantage of is that individuals cannot understand such complex systems. They are led to believe they have provided consent. 

With paid subscriptions, they are even assured they will see no targeted advertisements. Yet, the reality is that they remain in the dark about the specific data being relinquished, its recipients, and its intended purposes.

Privacy is not for sale — not now, not ever

The digital rights community awaits the EDPB’s decision with anticipation, hoping the board will firmly reject “Pay or Consent” in their April decision, and set useful guidance and a robust precedent for privacy and data protection standards in the future months.

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However, it’s crucial to emphasise that the debate extends far beyond mere consent, and despite EU laws, tracking in digital advertising continues to be the norm. 

Moreover, non-compliance is often tolerated among large online platforms. The problem thus lies not in individual practices, but in the various methods by which Meta and its counterparts not only sustain their model but also enforce it on other platforms which have also resorted to “Pay or Okay”. 

Platforms, such as publishers, struggle to offer a genuine alternative because the market heavily favours ads based on tracking.

EU institutions must put an end to the unjust data processing inherent in pervasive business models like Meta’s, which violate people’s fundamental rights. 

Until that time comes, our privacy will continue to be subject to Mark Zuckerberg and other Big Tech leaders’ discretion, while the ability to control our personal data remains a privilege accessible primarily to the wealthy.

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What the EU urgently requires for the next mandate is new legislation tailored to digital advertising, capable of effectively addressing the harms caused by the tracking-based advertising industry.

Itxaso Domínguez de Olazábal is Policy Advisor at EDRi.

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