EDPB Opinion on ‘Pay or Consent’ models: A critical analysis mp4

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Arthur Cox LLP

Arthur Cox LLP

2 ай бұрын

Our panellists provided their critical analysis of the EDPB Opinion in the context of the interplay between the GDPR, other fundamental rights and new digital regulations. They analysed the Opinion and reflected on the current key debates in the digital sector around balancing of rights, monetisation of data, user autonomy and extent of regulatory oversight.
Panellists include:
Rob Corbet, Partner and Head of the Technology and Innovation Group at Arthur Cox
Eva Jarbekk, Partner, Schjodt
Mikolaj Barczentewicz, Associate Professor in Law, University of Surrey and Research Associate, University of Oxford
Peter Craddock, Partner, Keller and Heckman
Date Recorded: 21st May 2024

Пікірлер: 3
@benneballe
@benneballe 2 ай бұрын
The balancing test between fundamental rights is presented in this webinar as being an argument against the Pay or Consent opinion. But who says that? Do we have a crystal clear court-approved balancing test that concludes that the right to do business is in this case more important than the right to privacy? The proportionality test might just as well end up leaning towards privacy being more important. So I wonder, whether there is some bias in this webinar here. I am just honestly curious of why a balancing test would be reason for arguing against the Pay or Consent opinion. It seems that no arguments are presented as to why freedom to do business has to be respected MORE than the right to privacy, which cannot also be used to argue the exact opposite, ie. that privacy has to be respected more than the right to do business. It might even be argued, that the Opinion in and of itself is a balancing test, which argues in favor of respecting the right to privacy over the right to do business in the Consent-or-Pay scenario.
@EmberRestored
@EmberRestored 2 ай бұрын
I agree with you. To me it seems forced, perhaps even arbitrary, to bring in the argument of the freedom to conduct a business. Also, a big point that is overlooked here is that these limitations from the EDPB do not limit anyone to conduct their main business - they limit the businesses’ possibility to maximize their profits by relying on behavioural advertisement without consent. Where lies the automatic conclusion that the right to maximize profits shall be given precedence above the fundamental right to privacy? The reason I use the word arbitrary is that personal data concerns only arise as a consequence of the processing technically being completely necessary to fulfill this business model. If this model is accepted, where do we cross the line? An invasion of privacy is an absolute prerequisite for the behavioural advertisement model we know today. No one can convince me that it should be justified that I have to share my personal data with 800+ partners for sometimes even 700 days only in order to read the first page of a newspaper which does not even show the whole article. It is not proportionate in any way. The only reason we are even talking about these things is because companies over the last few years knowingly have engaged in a business model which, at the very best, finds itself in a legal (and perhaps ethical) gray zone. My personal opinion is that businesses should carry the risk for this themselves - why should consumers *literally* pay the price for businesses finally having to comply with the regulations which have been there for so long? Furthermore, the tracking mechanism in these damn cookies also highly influence which ideas I receive, what I see, and can sometimes also influence how I feel. Can one not argue that my right to not only share ideas, but to receive them too, is highly affected by me not really having a choice other than paying? I miss this side to the argument as well.
@benneballe
@benneballe 2 ай бұрын
@@EmberRestored Great point. The opinion suggests a free model without behavioral advertising for the most basic features. Craddock reasons: why give anything for free, this goes against the right to do business. Here, I would answer that no normal business has to give anything away for free. Just the extreme large, multi-billion, global giga-companies that have more consumers/customers (whatever you wanna call users having a profile on FB/insta) than most countries have citizens. Even though the EDPB fumbles a bit with the definition of Large Online Platforms, it is obviously those superbigtech-companies, which some consider the largest gathering of humans known to date, that are all influenced by one company's legally and morally grey practices to maximize profit. Just a thought experiment. If we'd have no laws against monopolies. And all of a sudden, somebody states that there is no fair competition, and we now want to limit monopolies. Would these monopolies then argue, that it is going against the fundamental right to do business that they are limited? What EDPB probably wanted to suggest is that Meta creates a light version of FB and Insta, in order to not exclude anybody or discriminate against anybody, and at the same time, not forcing anybody is forced to hand over data, just because it seems the whole world is on Facebook. Excluding somebody from Facebook is basically nowadays the same as excluding somebody from the village some couple hundred years ago. You are shunned, you are not able to follow the rest, you are not a part of the group. So, seeing as Meta has such a great influence and power over the biggest gathering of people known on the planet Earth to date, it seems fair to have them create a light version, stripped of behavioral tracking, excluded from training AI, and not with advertising that is connected to any personal data (ie. contextual advertising) - yes, maybe even strip this light version of Stories, and other functions made just to keep the user engaged and in the app. It is once more just industry fighting regulation. A natural reaction, but let's not forget that there are the many, and there are the few. The few, it seems, argue against regulation. The many, on the other hand, want protection. And, yes, I will quote Star Trek now. The needs of the many outweigh the needs of the few. At least in the question of: the need to be able to use one's fundamental rights. I don't see Meta having to close up shop tomorrow due to them giving away a stripped light version of Facebook/Insta. I do see the inability to have privacy from advertisers, though, already today. It is about proportionality. And it is not proportional that 1 company - no matter that it is data driven - can have so much power over a number of people that is bigger than all of the population in the FOUR biggest countries on earth COMBINED. Is that proportional? And seeing as they feed these people's data to a many hundreds of advertising companies, it is for a normal person impossible to use their fundamental or data protection rights. Meanwhile, Meta is continuing to make extraordinarily much revenue. Disproportionate. In the end, the reasoning presented in the webinar regarding the right to do business, leaves me to one conclusion: Meta says implicitly "people can just leave if they don't like it". Well... exactly that is what could happen when forced into a corner. People might leave. From that standpoint it may be business crucial to create trust with users. Asking for payment because some people would like to keep being able to use their fundamental rights (not only privacy - other fundamental rights are also ignored in Meta's practices, but I digress), and Meta not being okay with those people wanting to use their rights, may in the end not be helpful for the business.
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