Facebook Claims Users Sign Up Because They Want To See Personalized Ads, Max Schrems Disagrees — And Usually Wins These GDPR Arguments

from the time-to-start-planning-for-defeat dept

The privacy activist Max Schrems has been conducting a battle on multiple fronts against Facebook’s use of personal data. Last year, Techdirt wrote about one of the skirmishes, which saw the EU’s highest court, the Court of Justice of the European Union (CJEU), ruling that Schrems could use the GDPR to litigate in Austria, where he is based, rather than in Ireland, where Facebook has its international headquarters. The latter option would have been prohibitively expensive for Schrems, and would probably have meant he dropped the case.

Schems has now begun his legal action in Austria, before the Vienna Regional Court. According to Schrems, Facebook admitted that it has been collecting and processing data without users’ consent since the introduction of the GDPR last year. However, in an interesting move, Facebook has claimed that it is not breaking EU law for the following reason:

According to the GDPR, in addition to consent, there is also the possibility of processing data for the “performance of a contract” (Article 6(1)(b) GDPR). Facebook now claims to have concluded such an “advertising contract” with users who, according to Facebook, have ordered “personalized advertising” when they signed up to the new terms and conditions on May 25, 2018.

Essentially, Facebook is claiming that people join its service because they are simply dying to see all those personalized ads that Facebook wants to show them. To counter that novel claim, Schrem’s organization NOYB commissioned a study by the Austrian Gallup Institute, which interviewed a representative sample of 1000 Austrians (original in German – pdf). According to Gallup, only 4% of the sample actually loved the ads, with 6% liking them slightly, 21% indifferent and 69% disliking them or really disliking them. That’s only one survey, but it certainly suggests that Facebook is clutching at straws with its new line of arguing. According to NOYB:

Cecilia Álvarez (Privacy Policy Director of Facebook EMEA) was questioned by the Viennese judge yesterday. However, she was unable to answer many of the questions. Facebook’s lawyers argued that she lacked the “technical understanding” to answer questions on Facebook’s handling of personal data.

As Schrems points out, Facebook would have the court believe that users know exactly what they are committing to when they agree to the service’s terms and conditions, and yet: “not even the top Facebook privacy expert can explain exactly what the company does with our data.” The hearing before the Viennese court to decide the issue has been adjourned until February, so nothing more will happen until then. But the stakes are high. Schrems comments: “If we succeed, Facebook will have to change its practices to comply with the GDPR and give users real voting rights. That?s our goal.”

Moreover, a victory by NOYB on this point, if confirmed by the CJEU, would affect every company operating in the EU that gathers private data from its users, and sells advertising based on the personal details. However much Internet services like Facebook and Google might hate that prospect, they know that it is a real possibility, as proved by Schrems’ already impressive track record of winning these kind of GDPR arguments.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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Companies: facebook, noyb

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Comments on “Facebook Claims Users Sign Up Because They Want To See Personalized Ads, Max Schrems Disagrees — And Usually Wins These GDPR Arguments”

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36 Comments
Scary Devil Monastery (profile) says:

Re: Re:

"…since Facebook is little more than an advertising company disguised as a social media company these days."

"These days"?

Last I checked EVERY social media platform launched as a corporation was primarily built to be or be a part of a for-profit operation taking advantage of having large herds of sheeple voluntarily logging on to browse the offers.

Anonymous Coward says:

Re: Re:

So Facebook’s new terms allow them to bypass the GDPR by claiming contractual services goes into effect the same day the GDPR does?

They also "transferred" all non-European users from Facebook Ireland to Facebook USA around that time, because otherwise any non-American could have used the GDPR.

Anonymous Anonymous Coward (profile) says:

On reading and reading comprehension

Did someone do a study on how many people actually read the new terms of service?

Another question for that poll might be of those that claim to have read the whole thing (how many pages?) how many understood it?

Then, further, from that reading, did they understand that in order to ‘personalize’ those ads Facebook claims they love how much information as well as what information is collected and to whom it is disseminated?

I will bet the first number is low. The second number is even lower. And the answer to that last multi-part question is WTF.

Anonymous Coward says:

Maybe that’s why I never signed up for a Facebook account or ever visited them. I despise ads.

As long as they are taking my bandwidth, without asking I might add, putting my computer at risk, and doing data mining from that, I have the choice of shutting them completely off. If a site doesn’t want me to see their content because I won’t allow the ads, I’m good with that. I don’t want such a site counting my eyeballs as a reason to jack advertising rates.

I will continue to that until the advertising industry cleans up it’s act. so far that record is dismal to those that value their privacy or their security.

This comment has been flagged by the community. Click here to show it.

Anonymous Coward says:

Re: Re: Re:

Facebook sends whomever is requested or subpoenaed. A policy director should be able to answer broad questions, sure. But expecting any one person to be able to answer technical questions about all of the ways that Facebook uses their customers’ data? That doesn’t sound reasonable, or even possible.

Anonymous Coward says:

I don't want personalized ads

I much prefer random ads in my ad supported apps to personalized ads. The things I want, I already know about and know where to get them. the most interesting ads are the ones for things I don’t know about.

Seeing the same ad for the same crappy alternative to the thing I was search for yesterday is of no interest to me. Seeing a variety of ads for products I didn’t even know existed is far more useful.

Although, I must admit having every ad for two days be for a service I already use (because I did a search for one of their new offerings) was quite amusing. It did make it a lot easier to ignore.

crade (profile) says:

Facebook would have the court believe that users know exactly what they are committing to when they agree to the service’s terms and conditions, and yet: "not even the top Facebook privacy expert can explain exactly what the company does with our data."

This is hardly a contradiction. What the users "commit" to and what the company does with the data are two different things. The users "commit" to some broad overarching "we can mostly do whatever we want with your data" type of agreement that I’m sure the privacy expert knows just fine. What is actually currently done with the data is a question bogged down with implementation details.

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