Meta and the DMA: a critical review of consent interpretations

Part 2 of critical review of the Commission’s PayorOK decision on Meta & the DMA: now for the more GDPR-related part, on consent.

As mentioned in part 1 ( https://lnkd.in/dvNKkjWk ), the European Commission (EC) draws lots from the EDPB’s Consent or Pay Opinion. [I was *very* critical of that Opinion – see https://lnkd.in/eddQ4yW8 ]
The EC has lots of text (226-231) to justify its references to that Opinion (despite such concerns), leading once again to the big question: what is the legal value of an EDPB Art. 64 GDPR Opinion? This is for instance palpable in para. 242, which relies on the EDPB Opinion to make up for the lack of evidence for the EC’s allegations re lock-in effects.

Other than that:

– The EC focusses a lot on “freely given” consent as from para. 178, highlighting “imbalance of power” as a key criterion affecting freely given consent. See 180: “Because of that imbalance, an end user cannot negotiate with Meta any other option than the two options offered to all end users
(Surely end-users can easily negotiate options with *any* other service provider, right?)

– 184: “the existence of network and lock-in effects across Meta’s Non-Ad Services […] may make it harder or unrealistic for those end users to choose alternative services” + 245: “many people do not conceive of a ‘life without social media use’
=> (i) “DeleteFacebook” was a thing and (ii) this reveals a subjective assessment, not an objective one. Should I be entitled to private transportation for free if “I can’t conceive life without mobility”?

– 185-188 copy the EDPB’s argument that if you started as an ad-funded service and grew, you cannot ever introduce a paying version because people are used to getting the service for free, so the ad-funded version you keep won’t involve “freely given consent”.
=> What *is* then permitted? Is a business forced to introduce a commercially less viable or even unviable alternative service? [See part 1: the EC’s logic suggests that even a user experience difference, such as seeing more (less personalised) ads to compensate for their lower revenue, would be contrary to the DMA]

– Under the GDPR, you must be able to refuse consent without detriment – and the EC says that paying is a detriment (190).
=> Campaigners repeatedly say that your data has value, though, so why is “giving your data” less a detriment than “giving your money” in the EC’s view? Or does the EC consider giving data to be detriment-free?

– Quoting the EDPB, the EC says that if you refuse the Facebook T&Cs, you are excluded from “a widely used communication platform, while being left with few realistic alternatives” (200). Just because there are few doesn’t mean there are none, though, and this assumes user apathy. Para. 260 even suggests others get more users in case of a Meta outage.

All in all, it feels like legal arguments in support of a political decision already taken. Counterarguments are flatly rejected, no self-reflection.

A pity, in my view.