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You misunderstood the issue, tracking is required for the free tier which is likely illegal in some areas. FB is allowed to use ads or no ads at different price points, but can’t add tracking automatically with ads.

It’s like selling dates. If you’re selling your time that’s fine, so a lunch dating experience is fine. However, if you bundle sex in with a ‘overnight experience’ that’s considered prostitution and illegal in many areas.

> which is likely illegal in some areas

Do you have a source for that? Because that would definitely be the crux of the issue then.

The article itself quotes:

> "In its ruling, the CJEU expressly recognised that a subscription model, like the one we are announcing, is a valid form of consent for an ads funded service."

which suggests that it is not illegal. But of course this depends on whether the "ads funded service" includes tracking.

I can't find any clear answers from a few quick google searches. Of course, the existence of this lawsuit suggests that the law itself may not yet be sufficiently clear, and so the judicial ruling will ultimately provide that clarity.

It IS illegal in the EU under the GDPR. People need to *voluntarily* consent to give access to their data. What Meta did, which is "give access to your data or you need to pay to access the site" is not by any stretch "freely given".

Source, for example https://gdpr-info.eu/issues/consent/#:~:text=Consent%20must%....

or

https://ico.org.uk/for-organisations/uk-gdpr-guidance-and-re...

or

https://www.bfdi.bund.de/EN/Buerger/Inhalte/Allgemein/Datens...

A lot of German newspapers seem to use this model and nobody has successfully challenged their interpretation yet.

Has been challenged and ruled illegal:

https://noyb.eu/en/pay-or-okay-tech-news-site-heisede-illega...

However, law is slow and it will take a while to propagate to more sites.

What that describes is a problem with the actual wording/sequence/nudging involved, and the result was merely a "reprimand".

It doesn't seem to declare that the model is fundamentally illegal. Also, wouldn't that kind of decision need to be taken at the EU level? Because until then, you could have all sorts of inconsistencies between localities and countries.

Yup, and those three links don't provide a clear answer against it either.

For example, the ICO link specifically states that it's OK to make a customer rewards loyalty card dependent upon tracking -- a clear exchange of allowing tracking explicitly in exchange for cash equivalents. That's still consent freely given.

A lot of the limits around consent are described with regards to employment, because there's an imbalance of power there. But that's irrelevant here.

The clearest prohibition is around "coupling", e.g. you can't make a purchase of an online grocery order contingent on sharing your data with third parties, because there's nothing "necessary" about that to fulfill the purpose.

But it seems pretty easy to make the case that tracking is "necessary" for fully effective advertising (ads without tracking perform much worse). So either subscribe for no ads (thus no tracking), or accept ads (and accept tracking). There doesn't seem to be any imbalance of power here, because you don't need to use Facebook the way you need to keep a job. Your consent is freely given, just like with a rewards card.

Although at the end of the day, the law does seems vague enough that it will be useful for a court decision to clarify it.

There’s a major flaw in that argument. Advertising without tracking still generates revenue, so having two different amounts of advertising based on tracking or no tracking is likely permissible.

However, linking the lack of tracking with buying a zero advertising tier is clearly coupling not a discount. Consider the reverse what if someone wants to pay for zero advertising but is perfectly willing to have tracking. Thus we’ve discovered 4 possible decisions and FB is trying to artificially limit them.

Right, but this is where it just gets unwieldy.

Are the courts really supposed to mandate that FB provide 4 tiers instead of just 2?

We're already in checkbox hell with the various popups. And the notion of "coupling" is notoriously hard to define in practice.

It's precisely the vagueness around what is and isn't coupling, that I could see the courts going either way. I was really just arguing that it's not clear cut according to the law as written.

I agree there is some vagueness here, but the number of options isn’t mandated. The only mandate is the for people to be able to avoid tracking. FB is free to only have 1 option advertising supported without tracking, or 1 option paid without tracking.

They can have 2 options advertising based with and without tracking, or 3 if they add paid without tracking etc.

It’s the same deal as wheelchair access. You don’t need to have stairs if you’ve got a ramp, but stairs alone doesn’t qualify as wheelchair accessible.

Same thing for many websites in France but I didn't find any track if it being challenged in court.

I doubt EU lawmakers planned for this approach to defeat privacy laws, it's definitely against the spirit but this will need an update. In FB case if you pay they 100% still track you anyway, they've been pretty clear they don't care even if they get caught.

Another angle against FB moving to a paid access system would be they could be considered public service due to how omnipresent the service is in day to day life, but lately it's probably more true for their other services like Insta or Whatsapp.

I think newspapers received an explicit carve out a little while back, which is where I think it's quite fair to call out the EU on a bit of hypocrisy.

This is one of the dumbest things about GDPR and one of the reasons why the EU has a stagnant tech industry. Their own regulations choke their companies to death.

If your company can't exist without infinite free access to user's data, then your company shouldn't exist.

> This is one of the dumbest things about GDPR and one of the reasons why the EU has a stagnant tech industry.

If progress means having to exist in a world without the GDPR, then I'm good stagnating.

The thing is, I can't find any part of that ruling[0] that even remotely matches Meta's claim. Can somebody point it out for me?

And it makes sense that there is nothing like that in there. Subscriptions were totally irrelevant to the actual questions that the CJEU was asked to rule on in that case (which was e.g. a claim by the German competition authorities that it was impossible for anyone to freely consent to tracking by Meta due to them having a dominant market position, and a counter-claim that the competition authorities did not even have jurisdiction over a GDPR case).

[0] https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CEL...

It is safe to assume that Meta will absolutely have tracking and data collection to the nines on this, because they have glibly been pleading ignorance and shock every step of the way as they've wrenched things towards the most anti-privacy interpretation possible whenever they get the obvious door in the face.

They just don't get any benefit of the doubt anymore.

Stop using it. It really is that simple.

Companies breaking the law isn’t about individual using or not using it, if the service itself is illegal.

Facebook is likely in the same situation as drug dealers, prostitutes, assassins etc the existence of willing customers doesn’t make their business model legal. They can change their business model or change the law.

Of course if it’s possible that they win, but completely baseless lawsuits get dismissed.

Many people have years invested into facebook. Taking it away would be just like involuntarily wiping your phone and computer to factory settings, with no backup. It's something you'd recover to some extent from, but it a) would take a lot of time and a lot of work, which you might not have time for right now, and b) people will forget to tell you about parties, indefinitely.

I'm using empathy here, as someone who quit facebook 15 years ago. Saying it's easy to quit facebook is like saying it's easy to quit the gas company, or eating meat. You don't have to use natural gas, and you don't need meat.

Stop using banks, taxi, delivery, mobile apps, Internet stores and Internet in general.

Many of these things indeed leak your data and usage patterns to Facebook (among other malicious actors), whether you use it or not (some do it server-side so no amount of client-side countermeasures will help).

No, you are missing options.

A) Pay 9.99. No tracking.

B) Ads. No tracking.

C) Ads. Tracking. For that consent is required.

The point is that consent needs to be voluntary to be valid. That is the huge legal difference. Pretty simple concept, but unpopular with advertisers.

So the comparison with A) is a red herring to distract from the lack of consent.

Is there a consensus on how much CTR you're giving up with context-based (as opposed to tracking-based) ad selection?

Are we talking 1% or are we talking 50%?

(What if tracking-based ads are actually less effective, as in: "I'm hesitant to click on an ad that keeps following me around"; "I've already bought this thing, will you please stop showing me this ad?"; etc)

What the options should be:

A) Pay the 10 euros a month, no ads, no tracking whatsoever

B) Don't pay the 10 euros a month, get ads, but no tracking if you don't EXPLICITLY consent to it. Ads != tracking, they can exist without invasive tracking.

C) Don't pay the 10 euros, get ads and assuming you don't care about tracking you consent to it. You get more personalized ads in exchange for this, which for some people I guess is a good deal

Instead, what's happening is:

A) Pay the 10 euros a month, get no ads, but still get tracked (let's be real here, it's Meta we're talking about)

B) Don't pay, you have no option but to consent to being tracked and being shown ads. This is what's illegal. If they don't want users to have a chance to voice their consent, then they should close down shop in the EU and only offer their services to paying customers, but we all know Meta doesn't want to lose out on the 2nd largest market in the world.

Option A is flat out illegal in the EU.

Option B is what some German online newspapers have been doing, and so far it's held in the lower courts, but there's been no binding precedent at national or Europe-wide level. If that were confirmed at a higher level, then legally, there would be a very big difference between Options A and B.

A recent ruling on behavioural advertising seems to suggest that Option B may not be in accord with the law either, and that's certainly what the NOYB lawsuit claims.

> People just hate having stuff taken away from them. They feel that Facebook ought to be free because it always has been, the same way a lot of people are still bothered by checked baggage fees on airlines because checked baggage had been included for decades.

This isn't entirely true. Companies didn't reduce ticket fares at the same time when they rolled out baggage fees. It was a de-facto price increase for many travelers.

>They feel that Facebook ought to be free because it always has been...

Maybe, juuuuust maybe, putting the phrase, "It's free, and always will be," right next to where you log in for eleven years wasn't the smartest of ideas.

Loosely related on the "alternate model", maybe some inspiration from different broker operating models can be used.

There are the brokers that operate on a commission basis: you get the exchange price but pay a commission on each trade.

And there's the "free" brokers where there's no commission because it's already included in the spread. That is, the price you see is a resell of the original exchange price with broker's markup. I ain't fooled by "free" which can end up more expensive than transparently commissioned but maybe some people are.

Why do you assume tracking is required for ads?

You don't actually need tracking for ads.

You don't 'need' tracking for ads, but it has a huge impact on the the amount of revenue per impression the ads will generate, because tracking enables you to show ads to the people those ads are relevant to.

There are a lot of business models that are feasible with tracking for ads, but are not feasible to offer for free without tracking.

If the law says you need to be able to opt out you need to be able to opt out...

Anyways the whole discussion is moot, tracking of users is illegal. Im sure slavery versus freedom of employment also has a huge impact on the amount of revenue a farm might have. Protections and regulations are usually created for a reason.

> the same way a lot of people are still bothered by checked baggage fees on airlines because checked baggage had been included for decades.

no, it's because of the predatory manner in which these fees are presented. they hook you on the cheap price of the ticket, and then whack you in the head with the fees so that the actual cost of the trip is no where near the advertised ticket price. much like ticketmaster, airbnb, resorts, and any other industry with these additional charges

For the sake of clarity (not intended as a challenge), what do you consider the optimal experience to be?

Not the person you're responding to, but:

All fees and taxes posted up front with a grand total below them. And preferably some check boxes to include or remove some fees from the calculation if they are or are not relevant to your particular situation.

At the very least some warning that additional fees exist and will be calculated at checkout or whatever isn't too much to ask.

This is definitely in the right direction, but I'd go further in saying that you cannot advertise based on the base price anywhere--ever when you know that this prices is not what the customer will be charged.

Actually, as you pointed, there's a BIG difference between

- "this is free forever" (remember FaceBook moto), killing the market using this and then, when there's no nore competitor (on specific age class for example), saying "OK, now pay"

AND

- "this is a charged service, but you may access it for free as long as you respect some limitations" : in that case, from day-1, you know that either you'll have a basic service or you'll have to pay someday.

Note: in the second case, when a "free tier" is degraded to force people to pay, it's the same problem as Facebook...

In fact, I think that the real problem here - and what people are fed up with - is the bait-and-switch

1) I promise that I'll promise something for free forever 2) People trust me and invest in me... so I kill the market 3) Then, when there's no real competitor, I try to charge

Even for capitalist, this way of doing business is just: how to build a monopoly to evade the market competition

So yeah... let's sue Facebook... and make it a clear example for all businesses around the world that this way of doing things is definetly NOT OKAY

It is technically free forever. Not sure what was changed. Even in the beginning we knew ad were going to be their main source of revenue

What changed is EU law. A free version which requires tracking is (AIUI) illegal now.

I guess this case will clarify whether that's true.

Both options are illegal in the EU.

https://gdpr-info.eu/art-7-gdpr/

Nobody is going to opt in to having their data used for advertising in exchange for nothing at all. It will eventually be held that it's abusive to even give people that option. So the obvious solution would be to take away the option entirely and give Europeans the option to have a paid account with no ads/tracking or to be locked out of the site. Of course, the EU could just whine about how Americans get Facebook for "free" but Europeans don't.

If the EU really wants to ban ad-supported sites, they should just come out and do it.

You can have ads, just don't intrusively track your users and harvest all their data en-masse. Ads != Tracking, as can be seen literally everywhere that isn't the internet where ads exist.

look at it like a crack dealer who at first gives you free samples.

this isn't confusing.