7 ms·

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

by veeti 3y ago

crazygringo 3y ago
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.
- Retric 3y ago
  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.
  - crazygringo 3y ago
    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.
    - Retric 3y ago
      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.
anonymousab 3y ago
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.
Algent 3y ago
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.
diffeomorphism 3y ago
Has been challenged and ruled illegal: https://noyb.eu/en/pay-or-okay-tech-news-site-heisede-illegal-decides-german-dpa 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.
- crazygringo 3y ago
  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.

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

by veeti 3y ago

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

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.

Retric 3y ago
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.
- crazygringo 3y ago
  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.
  - Retric 3y ago
    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.

anonymousab 3y ago

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.

Algent 3y ago

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.

diffeomorphism 3y ago

Has been challenged and ruled illegal: https://noyb.eu/en/pay-or-okay-tech-news-site-heisede-illegal-decides-german-dpa 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.

crazygringo 3y ago
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.