A First Take on the European Commission’s DMA Decision Against Meta
The European Commission issued a significant noncompliance decision earlier today, finding the “consent or pay” model that Meta implemented from March 2024 to November 2024 for its Facebook and Instagram services breached key obligations imposed on designated gatekeepers under the Digital Markets Act (DMA). Accompanied by a €200 million fine, the decision concluded that Meta’s approach failed to comply with Article 5(2) of the DMA. Importantly, the Commission’s decision does not extend to Meta’s revised offer, which has been augmented with a free-of-charge “less personalized ads” option.
The Commission’s decision hinges on two determinations. First, Meta’s model, which offered users a binary choice between accepting personalized advertising through personal-data combination or paying a monthly fee for an ad-free experience, did not provide a “less personalized but equivalent alternative,” as required by the DMA—especially as interpreted through Recital 36. Second, this binary structure, along with the associated fee for the privacy-centric option, was deemed to be coercive and that it violated the General Data Protection Regulation’s (GDPR) “freely given consent” requirement, which is explicitly integrated into DMA Article 5(2).
In this post, I’ll try to reconstruct the Commission’s likely reasoning. It’s crucial, however, to state upfront that, without the full published decision text, we’re operating somewhat in the dark, relying on the Commission’s press release and inferring connections to broader regulatory discussions. Of particular interest, in regard to the latter, is the European Data Protection Board’s (EDPB) recent opinions on “pay or consent” under the EU GDPR. This inherent uncertainty must be kept in mind.