Meta plans paid subscription for users who don’t want to be tracked

Since the European Court of Justice declared Meta’s handling of user data illegal in July, the company has been working on its next coup: a paid subscription for its social media networks Instagram and Facebook.

Should it become a reality, users would have to pay €13 to use either platform – and up to €19 if they want to use an ad-free version of both on their smartphone. The alternative? Being tracked for personalised advertising.

The move follows a ruling by the European Data Protection Board (EDPB) earlier this year, which banned Meta from bypassing user consent and declared its previous practice illegal. This position was confirmed by the European Court of Justice (CJEU) in July. It ruled that Meta couldn’t use personal data beyond what is strictly necessary to provide the company’s core services. According to EDRi member noyb, this means that Meta’s use of personal data has been illegal in the EU, at least between 2018 and 2023.

“Pay for your Rights”

Now, Meta is working on its next attempt to circumvent these restrictions. The company reportedly even discussed these plans with privacy regulators in Ireland and digital competition regulators in Brussels in September.Other national data protection authorities (DPAs) have been asked for their input as well.

Meta could already launch the ad-free subscription in the coming months, with prices depending on the device used. For both Instagram and Facebook on a desktop, users would reportedly have to pay a fee of €17 a month. If they subscribe via a mobile phone, the price of the package rises to €19. If users only want to subscribe to one of the services, Meta will charge €13.

These prices are absurdly high. If Meta were to confirm the reports, users would have to pay up to €228 a year to preserve their fundamental right to privacy on Instagram and Facebook alone. Should other companies imitate Meta’s approach, they would set in motion a domino effect that would make online privacy unaffordable.

Keeping everyone in check

Given the outrageous price, it remains to be seen whether users would actually be interested in paying for Instagram and Facebook. Meta knows this – and is using it to keep everyone in place by giving people the choice of either paying or being tracked. Combined with the absurdly high price, most people will not be able to choose the ad-free option but will be forced to just use the platforms as is. The supposed solution to the lack of free consent is just another attempt to circumvent EU privacy law. Paying hundreds of euros per year for Meta to respect your right to privacy is highly unlikely to be legal.

This view is also shared by Sandra Wachter, a professor of technology and regulation at the Oxford Internet Institute. “There’s a question of whether it’s actually acceptable that you have to pay to have your privacy protected even though it’s a human right,” she said in an interview with the Telegraph.“There’s a coming back up of the realisation that privacy is important – I think we started to forget that.” According to her, such a move by one of the most powerful tech companies could create a new digital divide, excluding people who cannot afford to protect their privacy. “What we shouldn’t do is equate people’s interest and wish to be private with their financial means to pay,” said Wachter.

Lack of free consent

If Meta succeeds in its plan, it could single-handedly undermine the GDPR’s concept of free consent and set a ball rolling that would turn the internet upside down.

One example of the negative impact of the “Pay or Okay” approach on free consent comes from a study by researchers at Chalmers and Utrecht universities. According to them, the CEO of the “Pay or Okay” provider contentpass stated that 99,9 per cent of visitors agree to tracking when confronted with their paywall – a result that Meta is probably hoping for. After all, the company’s $116 billion revenue in 2022 is mostly based on personalised advertising and the unlawful data processing of its users’ data.

It is only a matter of time before other companies take advantage of this loophole. The Chinese video-sharing platform TikTok is reportedly already testing an ad-free subscription itself.It is safe to assume that several competitors will be watching Meta closely in the upcoming months to see if they can follow in its footsteps.

A lazy copy from struggling media

According to noyb, Meta’s new approach is based on a so-called obiter dictum in the aforementioned CJEU ruling. The court added an additional, non-binding consideration, stating that when users refuse consent, “if necessary […] an appropriate fee” could be asked for by a company. However, it is doubtful that the court would adhere to this wording should the paid subscription model ever reach it.

The idea of a “Pay or Okay” model isn’t particularly new. In fact it’s rather similar to the approach taken by a growing number of German-language news sites suffering from a loss of advertising revenue. The idea was originally developed by the Austrian liberal newspaper Der Standard. It still offers the option of either agreeing to the processing of personal data for advertising purposes or paying a fee of €8,90 per month. This approach has already been declared illegal by the Austrian DPA.

A substantial risk for the free internet

The obvious difference is that Meta isn’t a struggling news outlet, but a multi-billion dollar company funded by the invasion of user privacy. But not only that. Charging up to €19 a month is outrageously disproportionate, especially when the company’s average revenue per user was reportedly €5.50 per month in the EU in the fourth quarter of 2022.

It is now up to Europe’s privacy and data protection regulators to make sure that Meta actually complies with the law. In reality, there shouldn’t be too much leeway. The European Data Protection Board has stated in its guidelines 05/2020 that consent is not free if there’s a significant additional cost to withholding it. In addition, the authority states that access to services should not be made conditional on ‘the consent of a user to the storing of information, or gaining of access to information already stored, in the terminal equipment of a user.’

It remains to be seen whether Meta’s regulator, the Irish Data Protection Commission (DPC), will allow the company to bypass the consent requirements of EU privacy law. Even if the paid subscription should become reality, it would be on shaky ground. noyb already announced that it would fight this up and down the courts.

Contribution by: Mickey Manakas, PR Manager at noyb