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Meta will offer ad-free Facebook and Instagram subscriptions in the EU, EEA, and Switzerland, confirming a WSJ report earlier this month. A Meta blog post says the ad-free subscription will launch next month.
After years of privacy litigation, enforcements, and EU court rulings, Meta no longer has a contractual right or legitimate interest to track and profile users for ad targeting. (At the time of writing, it is still doing the latter, meaning it operates illegally. Meta said she’d switch to consent this summer.
Only user consent can support Meta’s tracking and profiling ad business under regional data protection law. However, the adtech giant’s interpretation of free consent with this ‘pay us or be tracked’ subscription proposal will rightfully anger privacy advocates, as it says, ‘pay us money; or pay us with your privacy’.
Meta’s blog post states that the ad-free subscription costs €9.99/month on web or €12.99/month on iOS or Android per linked Facebook and Instagram accounts in a user’s Accounts Center. Each additional account listed in a user’s Account Center will incur a €6/month web fee and €8/month iOS or Android fee after March 1, 2024.
Anyone with multiple Meta social media accounts could quickly pay a lot to use Meta’s services without being tracked and profiled.
Even a single Facebook or Instagram user would pay almost €120 per year (web use) or just over €155 (mobile) to protect their privacy from Meta’s tracking and profiling.
As we reported earlier this month, Meta is relying on a line in a ruling by the bloc’s top court, the CJEU, earlier this year that allowed a “appropriate fee” to be charged for an equivalent alternative service without tracking and profiling, “if necessary”. The legal fight against Meta’s continued tracking and profiling of users will depend on what’s necessary and appropriate.
Since 2021, noyb, the European privacy rights group that has led much of the strategic litigation against Meta’s tracking and profiling, has filed a series of complaints with data protection authorities challenging news publishers’ “pay or okay” practices.
After the WSJ reported Meta plans to charge users for privacy, noyb’s founder and honorary chairman, Max Schrems, wrote in a press release earlier this month: “The CJEU said that the alternative to ads must be ‘necessary’ and the fee must be ‘appropriate’ I doubt they meant €160 a year. Six words are a ‘obiter dictum’, a non-binding element that extended the CJEU case. Meta will oppose this approach because this case law is unstable.
Meta’s lead EU regulator for GDPR, Ireland’s Data Protection Commission (DPC), responded to our request for a statement. “Meta notified the DPC on July 27 of its intention to implement an alternative, consent-based model in which users would be given a choice between ads-funded versions of its platforms and subscription versions in which, in return for a monthly fee, users will not receive targeted advertising,” the Irish regulator wrote.
While Meta initially identified February 2024 as the earliest date its consent model would be operational, it agreed to bring that date forward to November 2023 at the direction of the DPC, which was concerned to ensure that changes to the platforms would be implemented as soon as practicable in light of earlier findings that Meta had failed to demonstrate its entitlement to rely on the legal bases on which it was then relying. On July 4, 2023, the Court of Justice of the European Union ruled on Meta’s legal basis for processing users’ data for behavioural advertising.
Since Meta proposed the consent-based model in July, the DPC has conducted a detailed regulatory assessment with its fellow European supervisory authorities. In its role as Lead Supervisory Authority for Facebook and Instagram in Europe, the DPC is leading that exercise. The exercise is ongoing and has yielded no results. The DPC will notify Meta if its new user offerings comply with Meta’s GDPR obligations after it is completed soon.
Meta’s subscription or tracking offer hasn’t been approved by data protection authorities, and more regulatory intervention is likely. (Norway’s DPA, which has a local ban on Meta’s tracking ads, told us it doubts the subscription plan would constitute valid consent.)
Meta must comply with the GDPR, which defines legal consent as specific, informed, and freely given, as well as the pan-EU Digital Services Act (DSA), which limits larger platforms’ ad tracking and profiling. Meta’s subscription or tracking offer will be evaluated by data protection authorities and the European Commission, which oversees very large online platforms’ DSA compliance.
The DSA’s sister regulation, the Digital Markets Act (DMA), also limits data use for ads and designates Meta as a gatekeeper. The Commission alone enforces the DMA.
In recent days, the EU executive has requested more information from Meta about its approach to content threats from the Israel-Hamas war and election security issues. But Meta’s ad tracking offer may not be scrutinized as closely by the EU.
Meta claims that offering users the option to pay for privacy or agree to being tracked “balances the requirements of European regulators while giving users choice and allowing Meta to continue serving all people in the EU, EEA and Switzerland” in its blog post. However, it would say that.
The subscription is only available to adults, which raises questions about how it will comply with DSA and DMA restrictions on processing children’s data for ad targeting.
“We’re continuing to explore how to provide teens with a useful and responsible ad experience given this evolving regulatory landscape,” it says.
