Recent news of Meta’s settlement with Tanya O’Carroll marks a significant milestone in the ongoing debate between consumers’ privacy rights and how to fund their access to publishers’ properties. While the case is touted as a win for one woman, it also raises critical questions about how dominant platforms balance consumer privacy with their ad-driven business models. Upon closer inspection, it helps to draw a distinction between the obligations of Big Tech firms and the wider online publishing market.
To better understand how this case balances digital advertising with consumers’ right to privacy, we should review a few key aspects of the case:
- This case is about Dominant Platforms: This case highlights the elevated obligations of dominant platforms like Meta, which are intricately woven into the fabric of consumers’ daily online experience and for which they lack viable substitutes. This situation stands in stark contrast with smaller businesses who operate in a more competitive environment that offers consumers a wide degree of alternative options (news, retail, etc.). Dominant firms not subject to the same degree of competition must offer a true choice to the minority of consumers who do not want tailored advertising – which at the time of the suit, Facebook did not.
- This case is about Personal Data: O’Carroll’s legal claim centered on Facebook’s use of her individual identity for tailored advertising. While personalized advertising relies heavily on individual data, not all data is inherently personal. In today’s modern data-driven economy it is critical for organizations of all sizes to be able to exchange real-time information to improve their ability to innovate and compete for customers. It would be a mistake to make inferences from this case on the broader use of non-personal data for advertising. This means whether ads are targeted based on current context, geography, time, device-type or prior online interests, the same data is collected for standard business purposes (i.e. fraud detection, frequency capping, billing, attribution, etc.). What can be improved is how businesses respect the wishes of consumers who prefer not to see ads tailored to their prior activity, often referred to as “personalized advertising.” MOW agrees with a range of studies undertaken by the ICO, CMA, and OFCOM that find the majority of consumers prefer personalized experiences, but believes the minority should still have an elevated and improved mechanism to more easily signal their default preferences to all recipients.
- This case is not about Consent-or-Pay: Consent-or-pay models are widely criticized as turning privacy rights into a privilege accessible only to the wealthy who can afford it. However, this case was about using a specific individual’s personal data to deliver tailored ads. Had the case been about the use of random identifiers (as Apple touts in its consumer-facing privacy policy), the use of other Privacy Enhancing Technology (PETs) with contractual safeguards, or merely data-driven advertising not tailored to a specific individual, the legal challenge could not have proceeded.
Digital advertising funds Facebook, just as it does the majority of online publishers. However, there is no other option on the table that enables marketers to pay to fund people’s online access that lets these brands benefit from their media investments. No one is objecting to consumers right to privacy, but there remains an objection to anyone trying to interpret this as consent for advertising. Advertising comes in all forms, and regulators have rightly allowed for ad supported business to flourish provided they have in place the right safeguards for how data is managed and mitigating risks such as reidentification, illegal discrimination or worse.
Far too frequently many pundits pretend all data is Personal Data. Yet data protection regulations are clear, that organizations should put appropriate safeguards in place to rely on non-personal data whenever possible.