European Commission Investigates Meta’s Controversial Binary Choice
The European Commission has announced that its preliminary findings indicate that Meta’s binary choice for users of Facebook and Instagram does not comply with the bloc’s Digital Markets Act (DMA). This investigation, opened on March 25, follows months of criticism from privacy advocacy and consumer protection groups who argue that Meta’s subscription does not comply with data protection or consumer protection rules. The EU’s goal with the DMA is to level the competitive playing field, particularly in terms of data. Meta’s dominant position in social networking allows it to extract more data from users, giving its ad unit an unfair advantage. The DMA requires gatekeepers like Meta to obtain users’ permission for ad tracking, but the EU argues that Meta is failing to provide a free and fair choice to deny tracking.
The Commission’s preliminary findings highlight that Meta’s binary choice forces users to consent to the combination of their personal data and fails to provide them with a less personalized but equivalent version of its social networks. According to Article 5(2) of the DMA, gatekeepers must seek users’ consent for combining personal data between core platform services and other services. Meta’s social networks and ads business have been designated as core platform services, meaning that users have a legal right to access a less personalized but equivalent alternative if they refuse tracking.
Meta has defended its approach, citing a previous EU court judgment that suggests a paid version of a service may be offered as an alternative to tracking ads. However, the EU points out that a fee can only be charged if necessary, and Meta has not explained why it chose not to offer a free contextual ads option. The EU aims to force Meta to provide a non-binary, privacy-safe choice in the coming months, ensuring that users who do not consent still have access to an equivalent service that uses less of their personal data.
While Meta can still offer a subscription option, it would need to be an additional offer on top of a non-paid equivalent that does not require tracking consent. The EU’s investigation is ongoing, and Meta will have a chance to respond formally to the preliminary findings. However, the bloc has set a 12-month timeline to complete the probe, suggesting that it aims to finish by or before March 2025.
Consumer organizations, such as BEUC, have welcomed the Commission’s findings and urged speedy enforcement. They emphasize the importance of Meta complying with laws meant to protect consumers and ensure fair competition in the digital market. As the investigation progresses, it remains to be seen how Meta will respond and whether it will adapt its business model to align with the EU’s regulations.