Can marketers still advertise on Facebook and Instagram?
12th January 2023
Can marketers still advertise on Facebook and Instagram?
It has not been such a ‘happy new year’ for Meta so far.
For Mark Zuckerberg, the Facebook and Instagram owner, the year has dawned with the news that its advertising model in Europe, and a huge source of its revenue, breaks EU privacy laws.
The ads in question are ‘behavioural advertising’ – the ones that are targeted to a Facebook or Instagram user’s profile based on their online activity and details they have shared with Meta, such as their location and buying behaviour on the platforms.
As we discussed in a previous blog, Max Scrhems the privacy campaigner lodged his original complaint against Meta back in 2018. Since that time, Ireland’s Data Protection Commission (DPC) initially supported Meta, but Schrems kept on pushing and the case went to the European Data Protection Board (EDPB) who oversee all data protection authorities within the EU including the DPC. At the end of last year, the EDPB indicated that they agreed with Schrems and were going to overrule the DPC. On 4th January that judgement came in.
The result is that the DPC has fined Meta £343m for relying on an incorrect legal justification in order to target their users with personalised ads.
In response to the ruling Meta published a statement saying:
“We strongly believe our approach respects GDPR, and we’re therefore disappointed by these decision and intend to appeal both the substance of the rulings and the fines.” Meta
Is it still legal to advertise on Facebook and Instagram?
The short answer is yes. Meta is unequivocal about it. They state:
“These decisions do not prevent personalised advertising on our platform.” Meta
However, the issue is more complex. It will still be legal to advertise on Facebook and Instagram, but how marketers can do this may change.
What law is Meta breaking?
In order to use an individual’s personal data, the GDPR says you must have a legal basis, of which there are a number. To date, Meta has been using a ‘combination of legal bases’. The issue that Schrems raised was that Meta has been relying on the contract that the user agrees to in the terms and conditions, to accept behavioural advertising as part of its services.
Meta argues that it is a personalised platform and that people enter into the contract because they want a personalised experience. Privacy campaigners argue that users are not given the choice.
The DPC has now agreed that Meta’s reliance on ‘contract’ as a legal basis for processing users’ personal information is a contravention of Article 6 of the GDPR – lawfulness of processing.
What happens next?
Max Schrems for one believes that users will now have to opt in to receiving personalised ads on the platform:
“Meta has to get “opt-in” consent for personalized advertisement and must provide users with a “yes/no” option.” noyb
So with regard to “Is it still legal to advertise on Facebook and Instagram?’ – yes it is – but there are two distinct outcomes with shades of grey in between – at one extreme Meta will win its appeal and be allowed to continue relying on the contract as the legal basis; and at the other, users will have to opt-in to receiving personalised ads. In terms of the grey areas in between, the lawyers will be busy fighting that one out as we speak.
Of course, for Meta (and advertisers) – the opt-in ruling (which is looking the most likely at the moment) will mean less revenue for Meta and less ability to target personalised advertising at consumers who do not opt-in. They will still be able to receive non-targeted advertising.
Do you use Facebook or Instagram? Would you opt-in to receiving personalised ads and sharing your data, or would you prefer your privacy and generic ads?
As always, if you have any questions or need any data protection advice, please do take advantage of your complimentary thirty-minute consultation with one of our specialists – book yours here.
Did you know we have a Level 2 Marketing and the Law course – perfect for marketers wanting to know how to use personal data safely and it includes content related to this issue?
Find out more about our Marketing and the law: Foundation Data Protection Course here.
