BEUC: Pay or Okay Complaint
“We were very pleased with AWO’s work on this project, turning around a model complaint in a tight time frame and in the midst of a number of developments in this area. As well as their analysis we appreciated the team’s ability to take on board our feedback in the drafting process.” - Frederico Oliveira da Silva, Head of Digital Rights at BEUC
BEUC is the umbrella group for 45 independent consumer organisations from 31 countries across the EU. It represents them to the EU institutions and defend the interests of European consumers.
The data processing practices of Meta - which operates Facebook, Instagram and Whatsapp - have long come under legal and regulatory scrutiny in the EU. A regulatory focus is its highly targeted personalised advertising. That advertising is personalised through its data collection and profiling of users.
Regulatory decisions and court judgments have prompted Meta to make a series of changes to its basis for processing, most recently moving to a model whereby users who do not consent to personalised advertising processing instead have to pay a monthly fee (known as ‘pay or okay’). This presented consumer and digital rights advocates with the challenge of advocating for regulatory action from an entirely new angle.
BEUC asked AWO to draft a model complaint about pay or okay, to be submitted to authorities in 8 difference EU jurisdictions by BEUC member organisations. AWO’s model complaint can be found here.
AWO’s litigation team analysed the changes in Meta’s approach in light of a range of recent court judgments and regulatory action across the EU.
The model complaint highlighted how Meta’s policies use confusing, inconsistent and overlapping terms which obscure the impact of the pay or okay ‘choice’ offered to its users. In particular, Meta uses disjointed terms for what European courts and regulators consider a single purpose: behavioural advertising.
It set out issues with Meta’s legal basis, fairness of processing, data minimisation and purpose limitation, enabling BEUC members to make the case - for individual consumers - that Meta’s processing under the pay or okay model is not in compliance with the GDPR.
The complaints received widespread attention in the (see here and here). Since the complaints were filed, the European Data Protection Board has adopted an opinion on pay or okay in the context of behavioural advertising, which validates much of the analysis in our model complaint.