Is Behavioural Advertising on Facebook, Instagram and WhatsApp Illegal in the EU?

Is behavioural advertising on Facebook, Instagram and WhatsApp now illegal in the EU?

The short answer is that behavioural advertising on Facebook, Instagram and WhatsApp is not illegal in the EU. Yet.

Many believe that it is only a matter of time though.

Meta, the parent company of Facebook, Instagram and WhatsApp have found itself on the receiving end of some rather bad news from their point of view.

The European Data Protection Board (EDPB), has declared that the draft decision made by the Irish Data Protection Commission (DPC) last year was invalid.

The EDPB is a group of EU privacy regulatory bodies, including the Irish DPC, which is the lead authority for Meta due to their European head office being based in Dublin.

The issue is around Meta allegedly using personal data without adequate consent for behavioural advertising.

Back in 2018, when GDPR first came into being, noyb, the privacy campaign organisation fronted by Max Schrems, filed a complaint saying that Meta was not allowing users to opt-out of the personalised ads, claiming that the consent was ‘forced’.

Meta has ‘got away with it’ up to now because originally, in a DRAFT decision, the Irish DPC said that Meta could rely on consent because they had included details of how they processed the information within the terms and conditions. It is this decision that has now been over-ruled by the EDPB, the wider group of European governing bodies, who the DCP are obliged to answer to.

The process now is that the DPC have got one month (from 6 December 2022) to issue a FINAL decision on what is going to happen next.

We await this final decision, which is expected to include significant fines and the likelihood of instructing Meta to change its practices.

Meta’s shares dropped by 5.3% in the morning trading following the announcement that this ruling by Ireland’s Data Protection Commission will be made in January 2023.

Meta is expected to fight this decision, but should it be ratified by the DCP as is expected, it will mean that Facebook, Instagram and WhatsApp will not be able to use information about their users’ behaviour online to sell advertising in the EU. This is likely to be a huge blow to the organisation, as it will mean drastic cuts to their ad revenue capability.

We will watch this space and keep you informed.

If you have any concerns around your own data protection practices, please take advantage of your complimentary thirty-minute consultation with one of our specialists, or take a look at our latest training courses, including our marketing and the law course which covers what marketers can and can not do in order to stay compliant with the UK GDPR and also PECR the Privacy and Electronic Communication Regulation which cover things such as cookies, email marketing, telephone marketing, text and chatbots and other electronic communications.