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.

Filed Under: austria, eu, gdpr, max schrems, permission, personalized ads, privacy
Companies: facebook, noyb


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  • icon
    Stephen T. Stone (profile), 19 Nov 2019 @ 12:45pm

    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.

    Makes sense, since Facebook is little more than an advertising company disguised as a social media company these days.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 20 Nov 2019 @ 4:49am

      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.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Nov 2019 @ 1:05pm

    I expect facebook to lose this one but I have been expecting someone to pass tracker regulations which is the thing most people actually want for a long time.

    Was he the one who was suing to stop people from posting things in the United States from a treaty organization the US isn't a part of or was that someone else?

    reply to this | link to this | view in chronology ]

  • icon
    Norahc (profile), 19 Nov 2019 @ 1:25pm

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

    Sure looks like they were expecting this type of legal challenge and wanted to give themselves an argument against it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Nov 2019 @ 1:42pm

      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.

      reply to this | link to this | view in chronology ]

      • icon
        Ben L (profile), 19 Nov 2019 @ 2:23pm

        Re: Re:

        Well, you can't expect companies to broaden their liability umbrella, as much as you can expect rich people to pay more taxes than they need to (if they pay any all).

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 20 Nov 2019 @ 11:41am

          Re: Re: Re:

          Anything that comes out of that company calculate the inverse and multiply by 10 and you will have your answer!

          reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 19 Nov 2019 @ 1:48pm

    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Nov 2019 @ 8:18pm

      Re: On reading and reading comprehension

      It's that shit even readable?

      Between the fine print and the legalese, only lawyers will understand it. And that's if they bother to read it.

      reply to this | link to this | view in chronology ]

    • icon
      Seegras (profile), 20 Nov 2019 @ 12:13am

      Re: On reading and reading comprehension

      The terms of service aren't really relevant, as you can't make agreements that are against the law in the first place.

      Every article of a TOS which disagrees with a law is automatically invalid within its jurisdiction.

      reply to this | link to this | view in chronology ]

      • identicon
        teka, 20 Nov 2019 @ 6:01am

        Re: Re: On reading and reading comprehension

        There is "legal" and there is "the layman has no way to understand the dense legal clauses they are expected to agree with for everything", very seperate things.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 20 Nov 2019 @ 11:44am

          Re: Re: Re: On reading and reading comprehension

          TOS (terms of shit) for fb.. Some shit had to write that and if anyone understood it, they would put this company in their rear view mirror and never look back.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Nov 2019 @ 1:48pm

    What if all this data becomes sentient?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Nov 2019 @ 3:17pm

    Wait... Is GDPR good or bad?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Nov 2019 @ 4:22pm

    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Nov 2019 @ 2:36pm

      Re:

      Privacy IS security. Companies that unveil users' privacy or allow it to be usurped are liable for breach of security and trust. They should be crucified in a courtroom for it.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 19 Nov 2019 @ 5:47pm

    From the “mike likes it in the butt” dept.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Nov 2019 @ 7:06am

    The Director of any department is rarely the top expert at the company, that's a little disingenuous of Schrem. They should be getting testimony from a senior architect or engineer if they want details.

    reply to this | link to this | view in chronology ]

    • identicon
      ryuugami, 20 Nov 2019 @ 8:45am

      Re:

      It's "disingenuous" of Facebook not to have sent an expert on their privacy policies to a goddamn court hearing about their privacy policies.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 20 Nov 2019 @ 11:56am

        Re: Re:

        Disingenuous is synonomous with fb. Remember all the social media experiments they hoaxed on users?!!

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 20 Nov 2019 @ 3:02pm

        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.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 21 Nov 2019 @ 4:37pm

          Re: Re: Re:

          That answering a technical question of how a company uses data of its customers should be a straight forward answer you would expect, but greed and sleaze and outright deception by design will make the answer to that question impossible to trust.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Nov 2019 @ 7:40am

    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.

    reply to this | link to this | view in chronology ]

  • icon
    crade (profile), 20 Nov 2019 @ 10:57am

    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Nov 2019 @ 12:00pm

      Re:

      All data from fb that isn't immediately handed to gov agencies is no doubt being cradled and nurtured and embellished to raise its apparent value to be sold to highest bidder.

      reply to this | link to this | view in chronology ]


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