In that case, you could:
a) get a license (your suggestion),
b) link but not embed Instagram pages, or
c) embed in such a way that it shows a user-controlled notification that opening the embed will connect to Instagram and as a consequence sends data to Meta.
And indeed, some websites use c) without any problem, they even integrate it into the cookie popup. BBC even steps it up: all of their Twitter citations are screencapped and linked instead of other websites just embedding Twitter (in their defense, they can say that this is to preserve the context in case that the user subsequently deleted the post).
This is how we arrive at cookie popups and annoying "you're leaving our website" notifications. I posit that perhaps both of these could be a feature of HTTP protocol and the browsers - i.e. a browser could just display a small standard icon in its UI notifying user that he's consenting to cookies, and another one notifying him that he's being redirected outside of the domain he's in, The user could then configure the browser to auto-accept or auto-deny such attempts, review all the consents he's given earlier etc. - all in all, it would result in much better UX.
Google has probably not proposed and implemented something like this in Chrome already only because it would actually improve privacy and that's obviously not in their interest. Which proves that de facto giving up Web standards to the commercial entity was never a good idea. If the EU was better at execution, they would mandate something like this as the law, instead of the current requirements which can be met by just spamming users with popups no one reads.
So, working as intended I think.
We were better off 15 years ago
Imagine a kind of decision square. Rows are "consciously" and "unconsciously", Columns are PII collection, and privacy (no PII collection) .
This gives us a list of 4 possible scenarios (from least to most desirable). 1. unconscious privacy, 2. unconscious PII collection , 3. conscious PII collection, 4. conscious privacy
In detail (least to most desirable situation)
Box 1: Early internet everyone had unconscious privacy. No one was collecting PII, and no one was aware of it.
Box 2: Early 21st century, people started collecting PII at an ever increasing (and frankly alarming) rate. You may have encountered tall tales where people got sent baby advertisements before they themselves even knew they were pregnant.
Box 3: The goal of the GDPR, shine a light on the situation and make everyone conscious that there is a problem; and unveil the extent.
Box 4 (future): fix the underlying problem.
GDPR already addresses box 4 a little bit. Just by shining a light on these practices, some of the slightly shady bits at the edges are already solved.
Now that the situation is visible and known, we can take further political steps at mitigation.
What's disheartening is that in physical stores, this already started happening in the '90s, mainly for analysis of loyalty programs' data.
If you need to notify the user that he is "giving consent" then there is no consent.
> and another one notifying him that he's being redirected outside of the domain he's in
There is rarely a reason to redirect to other domains. The most common case is making outbound links go through a redirect for tracking purposes - and that I won't miss.
> There is rarely a reason to redirect to other domains. The most common case is making outbound links go through a redirect for tracking purposes - and that I won't miss.
You misunderstand this part, which is forgivable if you're outside Germany. This is about the mandatory "You're leaving X, we do not have control on their data collection or endorse this site's contents. Do you want to continue?" you'll see on German-language website because a court in Hamburg says that they're implicitly liable if they didn't state that.
And this is how it should be done, otherwise you read the article a few years latter and see a strange mess with empty holes.
If you want to make sure that you're not getting the balancing test wrong, you can always go for the legal basis of last resort: consent. Just ask the user whether you can load content from Instagram and only do it if they agree. In fact, since in parallel to the question of your legal basis under GDPR, you also have to comply with the cookie provision from the e-Privacy Directive, where there is no "legitimate interest" exception to the requirement to ask for consent, you will have to ask for consent anyway (as Instagram embeds place cookies).
I don't think that's true. The cookie provision is misunderstood when you think you have to ask for consent for functional cookies. Follows from the GDPR, and there is no specific cookie law actually implemented in european countries. See also https://gdpr.eu/cookies/. Ah, but maybe I misunderstood and you are only talking about the cookie set by the embed?
These are the guidelines on consent exemption by the Article 29 Working Party (the European Data Protection Board's predecessor) that explain it: https://ec.europa.eu/justice/article-29/documentation/opinio...
However:
> This is not the case for cookies placed by Instagram embeds.
Yeah, I can see how this is complicated and how it fits the topic. It's not a third party cookie for the embed, but for the website it might be, and is it even a functional cookie? I doubt it. I'm not sure how those would be judged and what is a reasonable way to work with embeds. It's only certain that there is not a solution as easy as it was in this case, where self-hosting the fonts was possible.
Other than court judgments, the Article 29 Working Party opinion is the most authoritative opinion you will get on the interpretation of the e-Privacy Directive, which is the "real legislation" that you need to look at.
edit: Nobody claims that the e-Privacy Regulation is in effect, by the way -- of course it isn't, it hasn't even been passed. The cookie consent clause of the e-Privacy Directive is however in effect, and has been since 2009.
Edit: No, I'm not. The GDPR page I linked states the situation that follows both from the GDPR and the e-Privacy Directive. It also fits to what is written in the directive itself.
Everything sqrt2 says in the comments is entirely correct, as far as I can tell.
Ridiculous to govern non-privacy relevant tech usage like this. I still think that's illegal where I live. Regardless, let's hope the e-Privacy Regulation or future court decisions solve this.
For example, say I want to embed an instagram post on my website. You could argue that I should talk to the person who took the picture and get a license for the image so that I can host i on my own domain rather than loading the content for instagram. In practice this is obviously much, much more cumbersome than embedding the IG post and so would result in huge changes how websites work (by vastly reducing any externally loaded content).
In a similar vein, you could argue that serving cached content from another host is not strictly necessary. Why not just run your own caching servers? It's probably worse in most ways (my cache server << cloudflare's cache server), but if minimising the amount of content loaded from external hosts is your aim then it is feasible.