Meta accused of enrolling undecided EU users in ad-sponsored platform

Choice between seeing pitches or paying on Facebook and Instagram might break the law

Meta has been accused of automatically enrolling Europe-based users of its Facebook social network into the ad supported version of the service if they've not yet chosen between the free and paid subscription options, an action which would violates EU rules.

To comply with European law, Meta last October announced it would offer a choice to Facebook and Instagram users in the EU, European Economic Area (EEA) and Switzerland. People could "choose to continue to use Facebook and Instagram with ads, or they could choose to pay a monthly fee for a subscription service with no ads on Facebook and Instagram."

That plan was challenged the following month by privacy advocacy group noyb (None Of Your Business) in a lawsuit that argues EU law requires consent for data processing to be given freely, rather than be offered as an alternative to a fee. Earlier this month, Noyb also filed a lawsuit [PDF] objecting to the inability to freely withdraw data processing consent granted to Facebook or Instagram.

Meta's "Pay or Consent" model now faces another obstacle in the form of a complaint filed with the Irish Data Protection Commission (DPC). Privacy consultant Alexander Hanff, an occasional contributor to The Register, told us that Meta appears to have stopped asking people in Europe to choose between the free version of Facebook that comes with ads and the paid version with no advertising.

Alleging this represents a direct breach of the Judgement in Case C-673/17, which says that pre-checked opt-in is not permitted under EU law, Hanff asked the DPC to intervene.

"It seems that Meta have decided that as of this weekend they will no longer ask people to choose via a popup when you go to but instead to enroll everyone who has not paid directly into the 'Use for free with ads,'" he told The Register.

Citing the case mentioned above, the complaint argues that it is illegal for Meta Ireland to automatically enroll Facebook users in the free version of the service, with all the ad-related data collection that entails.

"Given that they have done this to potentially tens of million of people in the EU over the weekend, this is an urgent situation that should be addressed through the urgency mechanism under Article 66 of the GDPR," the complaint argues.

The Irish DPC did not immediately respond to a request for comment.

Meta declined to address this in an on-the-record statement – perhaps being wary about saying something that would make its legal situation more precarious – but a spokesperson explained that Meta is not processing user data for EU-based accounts that have not yet chosen between the pay or consent service options.

We're told that everyone who has used Instagram and Facebook in the EU, the EEA, and Switzerland since November has been presented with the option to pay and avoid ads. That choice, evidently no longer pushed via popup menu, remains available through the account centers for the respective services.

Some users, however, have not yet made a choice and now appear to be in a sort of limbo as a result. They've been enrolled in – or "continue," as Meta puts it – the free, ad-supported version of the service but their information isn't presently being used for ad targeting and they're not being presented with ads. It's unclear how long this state of affairs will persist.

Meta on Monday said it plans to ask EU users of Facebook and Instagram to make another choice: whether or not to share information across the two services. ®

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