WhatsApp advertising updates: dispelling myths and ePrivacy realities

Many myths and exaggerations in reactions to WhatsApp’s announcement re ads. From “everything I mention in chats is used for ads” (that’s not how digital advertising works, and Meta had even made it clear message content is never used) to “all your Instagram and Facebook data is used” (while the WhatsApp announcement suggests this only happens if people actively link their accounts, which involves information and a clear choice) and “EU law being ignored” (first, it’s not quite clear when the actual EU launch will take place; second, references to the DMA and GDPR appear to ignore the existing DMA-related consent requests and data protection controls).

The first myth is one that echoes an inaccurate impression that many people have (and in my view even surprisingly more often in the data protection space than elsewhere) about how online ads work. The anecdote of “I was talking to a friend about ABC and then I saw an ad for ABC” is based on other factors, not on permanent surveillance of what you say or write. Clearly there is still a lot of awareness & education work to be done.

But I want to highlight one thing that I haven’t seen being discussed, namely the ePrivacy component, and this is linked to the fact that the ads will only appear in the “Updates” tab in WhatsApp, not between chats.

Based on the announcement, showing ads only in the “Updates” tab actually seems like a smart way of avoiding a specific issue regarding the anti-spam rules as interpreted in the CJEU’s StWL v eprimo judgment and that was also covered by the CNIL in its Orange decision.

By way of a reminder, the issue there was that the displaying of ads within a list of electronic mail (= which could also cover chats on WhatsApp) was considered by the CJEU and later separately by the CNIL as the use of electronic mail for advertising purposes.

In summary, their position was that the fact that an ad *looks* like an e-mail, because it appears within a list of e-mails, means that there is a use of electronic mail for direct marketing purposes. In other words, the *appearance* of spam is sufficient for something to *be* spam. You can imagine why I think this is legally wrong and a twisting of the words of the legislator, but it is in my view a rare legal misstep by the CJEU.
For more explanations on why I believe that this position is problematic, read my analysis here: https://lnkd.in/euQE3jgQ

In the case of WhatsApp, the ads do not seem to appear in the list of chats but only in the “Updates” tab, which avoids the issue altogether. After all, if the ad does not appear among electronic mail, it becomes harder to allege that it even *seems* to involve the use of electronic mail.

Perhaps a source of inspiration for any other providers of “electronic mail” in the broad sense, when it comes to how to manage monetisation of services that the user can get at no financial cost to him-/herself?