Right to object to advertising
Landmark privacy case shines light on ‘direct marketing’
Meta has agreed to stop targeting a UK human rights campaigner with personalised adverts in a settlement which could set a precedent for millions of social media users, and raise alarm bells for other businesses which offer targeted advertising solutions.
Tanya O’Carroll launched a lawsuit claiming Meta was breaching UK GDPR by not upholding her right to object to being targeted with online adverts. She argued ads served to her on Facebook met the definition of direct marketing, and under data protection law she has an absolute right to object to direct marketing, and associated profiling. A stance which was supported by the Information Commissioner’s Office (ICO) but disputed by Meta, which claimed its ‘personalised ads’ did not constitute direct marketing.
The definition of direct marketing in the Data Protection Act 2018 is: the communication (by whatever means) of advertising or marketing material which is directed to particular individuals. A key consideration is whether advertising or marketing is ‘directed’ to individuals, rather than indiscriminate advertising which is not individually targeted.
The case had been due to be heard in the High Court, but the settlement ends the legal action. Ms O’Carroll said; “In agreeing to conclude the case, Meta Platforms, Inc. has agreed that it will not display any direct marketing ads to me on Facebook, will not process my data for direct marketing purposes and will not undertake such processing (including any profiling) to the extent it is related to such direct marketing”.
In reaching a settlement Ms Carroll accepts this is not determined in law, as Meta has not accepted liability. However, she believes the support of the Information Commissioner’s Office (ICO) means “the writing is on the wall for Meta and its advertising-based business model.”
The ICO said; “Organisations must respect people’s choices about how their data is used. This means giving users a clear way to opt out of their data being used in this way.”
Meta said it “fundamentally” disagreed with O’Carroll’s claims and took its obligations under the UK GDPR seriously.
The fallout from this is Meta may now introduce a subscription service for UK users. Responding to the settlement Meta said: “Facebook and Instagram cost a significant amount of money to build and maintain, and these services are free for British consumers because of personalised advertising. Like many internet services, we are exploring the option of offering people based in the UK a subscription and will share further information in due course”.
An ad free ‘paid for’ service is already offered in the EU after a European Court of Justice ruling in 2023.
Meta may now shift to what is known as a ‘consent or pay’ model, whereby people either consent to being tracked for advertising purposes or pay to access an ad-free service.
We’ve seen a number of UK newspapers adopt this approach in recent months, which I’ve written about here. It’s controversial, and if Meta takes this step I anticipate more legal challenges to come.