From Initial Complaints in May 2018 to Sanctioning in January 2023

Facebook, Instagram and WhatsApp parent company, Meta Platforms Ireland Limited, has faced complaints regarding privacy since the General Data Protection Regulations (GDPR) came into effect in May 2018 and the matter has finally been addressed by authorities.

The data privacy activist group NOYB filed complaints against Meta’s consent practices with the European Data Protection Board (EDPB). The company has been using so-called forced consent through the use of hidden permissions which allows the use of personal data to create profiles for behavioural advertising. Such advertising is more commonly known as personalised advertising.

The EDPB passed its decision to Meta’s Lead Supervisory Authority, the Irish Data Protection Commission (DPC) on 5 December 2022. The DPC was given one month to announce its decision. On 31 December 2022 the DPC reached its final decision – to issue two fines to Meta, €210M in the case of Facebook and €180M in respect of Instagram. Meta also has three months to ensure that its data processing operations are compliant.

Legal Basis for the Decisions

Before the introduction of the GDPR in May 2018, Meta updated the Terms of Service for its Facebook and Instagram services. In these, it highlighted that the legal basis that would be relied upon when processing data would now be a contractual basis. In short, this meant that when a user agreed to the Terms of Service, they enter a contract with Meta. It was decided by the EDPB that this contravened Article 6 of the GDPR.

Delayed Response from the EDPB

A hugely significant aspect of this case is the length of time it has taken for sanctions to be levied. The EDPB has encountered questioning regarding its overdue response to the matter. This appears to be a recurring theme in cases that involve large multinational companies, Meta being all but one example.

What next for Meta?

Additionally, it is expected that Meta will face further sanctioning during January due to GDPR breaches relating to WhatsApp. However, we may see this issue run further into 2023 than January as it is likely that Meta will appeal any sanction decisions made against it which would prolong the process of reaching a final decision.

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