Introduction
The better artificial intelligence (AI) technologies get at predicting our preferences, the more we feel that our every digital move is being constantly tracked. We often encounter online advertisements that seem to read our minds. For example, we might see a promotion for a travel agency immediately after searching for a flight. Thus, it is reasonable to question the legal basis for monitoring our online activities to create personalised advertisements.
One of the most prominent entities using personalised advertising is Meta, which includes the social platforms Facebook, Threads, Instagram, and WhatsApp. In the last two years, several European legal authorities have concluded that Meta’s policy of processing user data for personalized advertisements contravenes the EU’s General Data Protection Regulation (GDPR). In response to those findings, in November 2023, the tech giant changed its privacy policy in the EU, the European Economic Area (EEA) and Switzerland. Since then, Meta’s options are known as the “pay or okay” model, where:
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(i) A paid version (monthly EUR 9.99 on the web or EUR 12.99 on mobile applications) of Meta services with no ads, guaranteeing that users’ personal data is not processed for advertising purposes; or
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(ii) A free of charge version requires users to “consent” to the processing of their personal data for advertising purposes.
A few days after Meta implemented this model, the Noyb-European Center for Digital Rights launched a GDPR complaint2 to the Austrian Data Protection.
Authority, laying down claims against Meta’s pay or okay model for personalised advertising.
Against this background, this paper will analyse the pay or okay model. It will provide some relevant factors to seek a balance between data protection and free markets. This first part of the paper (Part I) will focus on data protection concerns. In addition, it will discuss possible alternatives to the model. It will also examine how the laws governing personalised advertisements may be constructed. The second part (Part II, in a subsequent issue) will address challenges in other fields, such as competition law, consumer protection, and unfair commercial practices, in order to holistically consider the legality of pay or okay models.
