Post AXMDAM4tPO1W7Lzq0e by malteengeler@legal.social
(DIR) More posts by malteengeler@legal.social
(DIR) Post #AXMC4M1EcC1YF7rNyq by malteengeler@legal.social
2023-07-04T17:00:44Z
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Ok, so today the #ECJ published its judgement for case C-252/21 #Meta. The case touches upon issues I have been writing about since #GDPR became applicable. I’ll focus on the #GDPR and broader data economy issues only.Let’s go 🧵
(DIR) Post #AXMCCwZKbhP3uvu7zE by malteengeler@legal.social
2023-07-04T17:02:18Z
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The judgement originated from a dispute between the German competition authority (Bundeskartellamt, #BKartA) and Meta. The core questio: What legal basis can Meta use for the ad-based-monetization of its services (FB, Insta, WA etc)?The #BKartA prohibited #Meta to include ad-based-monetization within their terms of service and making use of Meta services conditional on accepting these terms. Meta brought this decision to German courts which eventually referred several questions to the ECJ.
(DIR) Post #AXMCIuXL4jenLtolFY by malteengeler@legal.social
2023-07-04T17:03:23Z
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The ECJ now had the opportunity to clarify which and how the several legal bases of Art. 6 GDRP apply. The most interesting parts are the ECJs thoughts about - contracts, Art. 6 (I) a- legitimate interest, Art. 6 (I) f and- consent, Art. 6 (I) a
(DIR) Post #AXMCTSoeTs6KYywp28 by malteengeler@legal.social
2023-07-04T17:05:15Z
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When it comes to making ad-based-monetization a part of the contractual agreement between the platform and its users the European Data Protection Board (EDPB) has for the longest time claimed that data processing can only be legitimized by contractual terms if the data processing is essential to delivering integral parts of the service. There is little to argue against that.
(DIR) Post #AXMCXpY1uEpQDuFsFU by malteengeler@legal.social
2023-07-04T17:06:07Z
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The issue however is: How do we determine what is essential to the service? The EDPB is of the opinion that they are the ones that can – from an independent data protection perspective – decide what is essential for a social network. Myself and others think that it is more helpful to look at the contractual terms of the service (I'll explain why at the end). The details of this old debate can be read in this text of mine:https://www.malteengeler.de/wp-content/uploads/2021/12/Dr.-Malte-Engeler-public-consultation-comment-on-the-guidelines-22019-on-the-processing-of-personal-data-under-Article-61b-GDPR.pdf
(DIR) Post #AXMCbUbPirPmQ8aHXU by malteengeler@legal.social
2023-07-04T17:06:43Z
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The thing is: The ECJ did not say how he thinks the essential part of a service should be determined. He only uttered some vague doubts about ad-based-monetization being an integral part of a social media services but referred the question back to the German court which will now have the unfortunate task of settling this debate and will probably refer this question back to the ECJ (yay, more delay).
(DIR) Post #AXMClW7ourKA2TWQlc by malteengeler@legal.social
2023-07-04T17:08:35Z
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Naturally, with the contract out of the picture the ECJ looked at other legal basis. Next on the list were “legitimate interests”. The ECJ ruled out those too. The reasoning is somewhat surprising. The ECJ basically said that user do not expect that “free of charge” services are monetized by ads (recital 117).
(DIR) Post #AXMCtfLmV7YOy0wD8i by malteengeler@legal.social
2023-07-04T17:10:00Z
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To me this is a most conservative point of view (as in: suspending change of societal perspective): Even if this was true several years ago, it surely is common knowledge now that “free” services are monetized by ads. It will at least be common knowledge eventually. Will the ECJ reverse its ruling if that point is reached?
(DIR) Post #AXMCz4Zs8MsOej6h72 by malteengeler@legal.social
2023-07-04T17:10:53Z
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The ECJ seems to be unsure about how convincing this argument is too as the court quickly backup-argues that legitimate interests can only be those interests that are necessary for achieving a specific goal. Referring back to its arguments in the context of contracts the ECJ obviously has no trouble repeating that it deems ad-based-monetization not necessary for running a social media platform.
(DIR) Post #AXMD2Nfza8Zyl4Xyc4 by malteengeler@legal.social
2023-07-04T17:11:33Z
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With contract and legitimate interest out of the picture the ECJ finally turns to consent, the secret crush of every data protection enthusiast in Europa apparently. And this is where I am most disappointed with the ECJ. The court argues that consent can be freely given even to dominant services like Facebook. All that is required is that the service provider offers alternative without data processing, like a version of the service offered only for an appropriate fee (recital 150).
(DIR) Post #AXMDAM4tPO1W7Lzq0e by malteengeler@legal.social
2023-07-04T17:13:02Z
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What all this comes down to is this: Data protection will become a privilege of those that can afford to buy out of tracking. The ECJ basically gave the “pay or be tracked” business model its blessing. For those not previledged enough to buy out data protection will be a nice theory that - in practice - only applies to people with financial resources, just like good health care or appropriate housing.
(DIR) Post #AXMDKjlKCn1aT9nIv3 by malteengeler@legal.social
2023-07-04T17:14:53Z
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The liberal digital civil society has of course already surrendered to this and is merely arguing about what fees are appropriate. I find it most troubling that these groups are still applauded as effective safeguards while they are merely legitimizing what they claim to be opposing.
(DIR) Post #AXMDRh0opQVjy1MGPI by malteengeler@legal.social
2023-07-04T17:16:06Z
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I am not surprised by this outcome obviously but I had some hope left.The preferable way - to me - would have been to see the terms of service as the defining benchmark for what is necessary for a service. This may seem like I am arguing the case of the digital economy, but I am not.
(DIR) Post #AXMDXkKzNUSo1AgAPQ by malteengeler@legal.social
2023-07-04T17:17:16Z
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By looking at the contractual terms itself we would be able to invalidate specific clauses that are contrary to fundamental rights. This would have enabled us to argue that clauses are invalid that make personal data a commodity. Ultimately this would have protected every user irrespective of its individual capacity to buy out of tracking.
(DIR) Post #AXMEzBu95mKNHwm2Xw by jthomi@legal.social
2023-07-04T17:33:29Z
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@malteengeler 🍷?
(DIR) Post #AXMHTSPiTYLJ5R6IZU by malteengeler@legal.social
2023-07-04T18:01:14Z
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The core issue of course is: Why is our social life supposed to be profitable for anyone in the first place? The answer is obvious, isn't it? Its the same answer to question why hospitals or flats are supposed to make a profit.(And no, the answer isn't "freedom")
(DIR) Post #AXMJlpQHrmeFZMFtSK by simon_brooke@mastodon.scot
2023-07-04T18:27:08Z
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@malteengeler Advertising is clearly not an essential part of a social network application, as #Mastodon is a social network application which runs just fine without adverts.
(DIR) Post #AXMKApidu2JVj8lRGC by simon_brooke@mastodon.scot
2023-07-04T18:31:36Z
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@malteengeler No, again. #Mastodon, the @internetarchive, @wikipedia, et cetera, are free services not monetised by ads. My blog, and many other blogs, are free services not monetised by ads.Free services not monetised by ads used to be 99% of the Internet, and are still a significant proportion of it.
(DIR) Post #AXML2NEI2gij0Q64si by smotchkkiss@mastodon.social
2023-07-04T18:41:19Z
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@malteengeler this feels so out of touch with reality. What choice do they think some people have?
(DIR) Post #AXMTzRw8z1zoK9I264 by bendrath@eupolicy.social
2023-07-04T20:19:00Z
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@malteengeler Can you name some groups or people? I am not aware that "pay or be tracked" is supported by civil society.
(DIR) Post #AXMV4H7kiDyoBtaIsq by malteengeler@legal.social
2023-07-04T20:33:42Z
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@bendrath noyb comes to mind. The don't argue against tracking or paying, they merely the fees are to high. And I don't recall any other NGO calling for withdrawal of consent be void of any negative consequences whatsoever.
(DIR) Post #AXMWnn0p6DG24lbtYW by bendrath@eupolicy.social
2023-07-04T20:53:08Z
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@malteengeler They don't say FB should be free, but that it should get its revenue by contextual advertising. And that NOYB argues for merely lower fees is news to me. Any source for that?
(DIR) Post #AXMY2c9hqXSEhbOkAi by malteengeler@legal.social
2023-07-04T21:07:00Z
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@bendrath "noyb hat sich primär an den exorbitanten Kosten für das "Pur-Abo" gestoßen: Während "Der Standard" nur ein paar Cent mit Werbung macht, sollen Leser:innen die das nicht wollen, satte € 96 pro Jahr zahlen. Die Profite vom "PUR Abo" sind etwa 10- bis 100-fach höher als von Online-Werbung."https://noyb.eu/de/pay-or-okay-der-anfang-vom-ende
(DIR) Post #AXMZA5d2lR485pFUMS by malteengeler@legal.social
2023-07-04T21:19:34Z
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@bendrath I am happy to see NGOs that have reasonable arguments for consent being invalid when the alternative costs money but is anybody still reading that into Art. 7 (4)? That ship has sailed long ago I think ...... but maybe I am wrong and there are NGOs that argue that non-monetary compensations are the only viable alternatives. I simply haven't seen that.
(DIR) Post #AXMZQgpiCtc4765dT6 by bendrath@eupolicy.social
2023-07-04T21:22:33Z
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@malteengeler Na, das ist ja nochmal ne andere Baustelle. Aber danke für den Hinweis.
(DIR) Post #AXNESPbZKOPrNhPkhM by malteengeler@legal.social
2023-07-05T05:02:16Z
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@bendrath It's the same question isn't it? Validity of consent given the alternative of paid access or ad-monetized use.
(DIR) Post #AXNGpGDyZQZkrBOyW0 by europaulb@eupolicy.social
2023-07-05T05:28:49Z
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@malteengeler @bendrath Call me old fashioned, but that just cannot be in line with a fundamental right to privacy and data protection. It is not a right for those that can afford it, but for all human beings.
(DIR) Post #AXNI03VOIf3GY5G6im by malteengeler@legal.social
2023-07-05T05:41:59Z
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@europaulb @bendrath Why not? Most fundamental rights are commodities already. The western legal tradition knows very few aspects of life that are not commercialized (labour of children or human organs come to mind) as long as the individual has formally given consent. I am not arguing that that is ok. To the contrary. I am just not surprised that the necessities of a profit-based economy quietly subsume and erode all fundamental rights, privacy and data protection included.
(DIR) Post #AXNJt9ZJYfxHEcvkmG by mkoek@mastodon.nl
2023-07-05T06:03:08Z
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@malteengeler @europaulb @bendrath Thinking about this… you mean nobody, not even if they are fully conscious of this fact, should be able to consent to their data being shared or sold? Seems quite far-reaching. Not sure.
(DIR) Post #AXNK8TXjZlAFWpUuCu by malteengeler@legal.social
2023-07-05T06:05:55Z
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@mkoek @europaulb @bendrath How is "fully conscious" a safeguard against the mute economic compulsation that makes people formally consent to things they would not consent to given more ressources? You are basically saying that exploitative conditions are ok as long as the injustice of the system is just described with enough words.
(DIR) Post #AXNKzuOkSZVGALm0f2 by mkoek@mastodon.nl
2023-07-05T06:15:30Z
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@malteengeler @europaulb @bendrath I was not saying anything, I was asking a serious question
(DIR) Post #AXNYUikx5odmRNBKIS by europaulb@eupolicy.social
2023-07-05T08:46:48Z
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@malteengeler @bendrath That is exactly why we have courts, to stop that commodification and uphold the fundamental rights. Also, I don’t read your conclusion in the judgment of the Court. §§147-154 read in conjunction in my view explain you are allowed to subscribe to services against payment and without tracking, but also state that the same service for free, based on “consent” and with tracking, would most likely be invalid.