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Facebook now denying access unless EU users opt-in to tracking

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Re: Facebook now denying access unless EU users opt-in to tracking

#11

Post by floatingatoll »

Kiro wrote: post #8
zimpenfish wrote: post #6

Earlier quoted context omitted.

Yeah, they're fairly clear that you can't make service conditional on marketing et al consent. > 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.

What if your service requires the tracking?

Then you’d be permitted to do so. Facebook Messenger’s chat with your friends service does not depend on tracking, for example, so this argument doesn’t apply to Facebook.

Re: Facebook now denying access unless EU users opt-in to tracking

#12

Post by [deleted] »

star-castle wrote: post #10
mtgx wrote: post #3

I'm pretty sure that's illegal under GDPR.

what? seriously? Do EU citizens have some kind of legal right to Facebook access, now? It's illegal for Facebook to not serve people they can't sell to advertisers? I'd love it if Facebook were nationalized (or destroyed), but none of the coverage of the GDPR made it sound like it was going in that direction. I thought it was just another stupid "click here to acknowledge our cookies" rule that was going to spam up t…

[deleted]

Re: Facebook now denying access unless EU users opt-in to tracking

#13

Post by star-castle »

floatingatoll wrote: post #11
Kiro wrote: post #8

Earlier quoted context omitted.

What if your service requires the tracking?

Then you’d be permitted to do so. Facebook Messenger’s chat with your friends service does not depend on tracking, for example, so this argument doesn’t apply to Facebook.

What do you mean by "does not depend on tracking"? Do you mean that you can conceive of a way to implement the service as it appears to the user, without tracking? Because Facebook can certainly inject tracking into their chat app. Given Facebook, I assume it's already the case that if I type "let's get married" and then erase those words and never send them, that Facebook's going to start showing me advertisements for how to pop the question.

Re: Facebook now denying access unless EU users opt-in to tracking

#14

Post by zdragnar »

Kiro wrote: post #8
zimpenfish wrote: post #6

Earlier quoted context omitted.

Yeah, they're fairly clear that you can't make service conditional on marketing et al consent. > 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.

What if your service requires the tracking?

Consent isn't required for data collection that is necessary for the service to work. However, you have to be prepared to defend in court that it IS necessary.

As such, trackers in 3rd-party advertising network code probably won't count as necessary; it's necessary for the ad network, but it is not necessary for the website displaying the advertisements, as proven by ad-blockers.

Likewise, the facebook like button and other "plugin" components aren't "necessary", they merely add value to the existing content / features, and must therefor be entirely opt-in.

At least, that's my understanding, which is entirely too facile to be taken as legal advice.

EDIT: As petercooper pointed out below, in addition to proving necessity, you must still also prove in court that you have balanced the necessity against users' rights and interests. As such, I no longer feel confident to say I even have a clue as to what is legal and what is not, for FB or for anyone else, until there's a big enough court case to set precedent.

Re: Facebook now denying access unless EU users opt-in to tracking

#16

Post by jasonlotito »

floatingatoll wrote: post #11
Kiro wrote: post #8

Earlier quoted context omitted.

What if your service requires the tracking?

Then you’d be permitted to do so. Facebook Messenger’s chat with your friends service does not depend on tracking, for example, so this argument doesn’t apply to Facebook.

Define "doesn't depend on" because I could easily make the argument that Messenger's chat does require tracking location for example to increase security and to fight spam. By not opting in to tracking of location, you degrading the quality of the service and affecting other people.

i.e. Without this tracking, the quality of Messenger is affected, and therefore, by definition, the service cannot be provided without it.

Re: Facebook now denying access unless EU users opt-in to tracking

#17

Post by gonmf »

star-castle wrote: post #10
mtgx wrote: post #3

I'm pretty sure that's illegal under GDPR.

what? seriously? Do EU citizens have some kind of legal right to Facebook access, now? It's illegal for Facebook to not serve people they can't sell to advertisers? I'd love it if Facebook were nationalized (or destroyed), but none of the coverage of the GDPR made it sound like it was going in that direction. I thought it was just another stupid "click here to acknowledge our cookies" rule that was going to spam up t…

There is no legal right to Facebook, but if Facebook wants to do business here, it has to abide by our rules. And our rules are very simple, you cannot deny service because the user doesn't allow tracking if tracking is not necessary for your service to work. And it isn't in this case, it's only necessary to deliver higher paying ads.

Since they are being selective on the users they accept based on being tracked, they are now on track for another EU fine.

Re: Facebook now denying access unless EU users opt-in to tracking

#18

Post by [deleted] »

floatingatoll wrote: post #11
Kiro wrote: post #8

Earlier quoted context omitted.

What if your service requires the tracking?

Then you’d be permitted to do so. Facebook Messenger’s chat with your friends service does not depend on tracking, for example, so this argument doesn’t apply to Facebook.

[deleted]

Re: Facebook now denying access unless EU users opt-in to tracking

#19

Post by okmaybeyesno »

zimpenfish wrote: post #6
mtgx wrote: post #3

I'm pretty sure that's illegal under GDPR.

Yeah, they're fairly clear that you can't make service conditional on marketing et al consent. > 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.

Facebook will argue that the data is necessary.

Re: Facebook now denying access unless EU users opt-in to tracking

#20

Post by dbbk »

ben509 wrote: post #9
Lionsion wrote: post #2

IIRC, the GDPR is very explicit about what constitutes valid consent, so things like pre-checked check-boxes aren't valid. Is "consent" gained by a screen with only an "I agree" button even kosher by it?

It may be that FB's lawyers come at it with a more American view whereby it's legal if it complies with the letter of the law. I suspect the Euro legal system tends to build a fence around the Torah, so to speak.

It doesn't seem to comply with the letter of the law though, based on the requirement of "freely given, non-conditional consent".
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