Consent is required to be "freely given", which isn't the case if it is required. E.g. Article 7:
> When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract.
Or in Recital 43:
> Consent is presumed not to be freely given [...] if the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance.
Thus, where they do give "consent" as the basis on which they process data as part of Terms of Service the user has to accept, that's highly critical if they do not query for that consent independently, and in a way the user clearly can deny. You can't require consent in something the user has to accept to use your service.
(You can find the full complaint against Facebook here: https://noyb.eu/wp-content/uploads/2018/05/complaint-faceboo...)
Yes, indeed. That just leaves the matter to specifying the exact nature of the contract. So the service being provisioned can be “access to the tools to connect with one’s friends and such tools have personalized ads built into them”. Does my approach misinterpret things? I don’t think anything is specified about what kinds of contracts can or cannot be offered. And in a reasonably free market, it cannot. And of course, it should not - hardly any of the biggest internet companies could make money without ads.
Now if FB or Google, or another company were to be regulated as a utility company, then yes, the nature of their contracts can also be regulated.
They could go a step further, and simply ban “all personalized ads” - I’m not sure how feasible that is, but that would give the EU the right to regulate the kinds of ads shown by FB and ergo, the kind of data collected. But personalized ads is a immensely vague term that could even catch tv and radio ads (targeting based on demographics, and time of day the show is being broadcast, etc.) in the dragnet.
To be a bit glib, if Ads are a core part of the offering, surely the facebook.com front page should mention them?
Of course, like another commenter mentioned about face recognition and image processing, that is hardly relevant to most kinds of advertizing.
The question is one of legal basis and also of specifying explicitly what is being done with the data.
That leads to the next question - how will things be verified? Will an entity get to audit FB algorithms in toto to sign off that they’re secretly processing facial recognition data?…that’ll be the real challenge.
It doesn't really say that. There are six lawful reasons to process data. User consent is only one of them. The one that's useful for most companies is "legitimate interest".
https://gdpr-info.eu/art-6-gdpr/
See, for example, advice from the UK regulator about potentially using legitimate interest for marketing (something that many people are saying needs explicit consent): https://ico.org.uk/for-organisations/guide-to-the-general-da...
Yes indeed, there is a list of reasons. I pick the one based on consent, because it seems the most relevant for a company. Process the users’ data, but get their permission first.
>The one that's useful for most companies is "legitimate interest”.
I would have thought that one was a bit nebulous. No one has given a hard and fast definition of that term. And rather than risk a court’s interpretation or benefit of the doubt, I figured it might be safer to rely on the consent approach.
But if you can argue with legitimate interest (which is more burdensome), the person cannot decline and still use the service.
Choose: either easy basis and accepting that you might not get your way, or difficult basis and getting your way.
That‘s not how it works.
Now If I made a “communication tool” exclusively for registered gun dealers and people with valid (and verified) hunting licenses, it would in fact be perfectly legal. Similarly, if the tool were for use by government agencies and defense contractors or registered weapons manufacturers, it would also be legit.
In the context of “chat tool with personalized ads on the side” - there is nothing specifically illegal about “personalized ads”. Is there? (As long as there is user consent of course). So what’s the specific legal hurdle? Which paragraph of the GDPR prevents this?
As far as I understood, it doesn’t mandate the exact nature of the ToS between the service provider and user, leaving that to be a free-will agreement between two parties.