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EU: EDPB announces urgent binding decision to extend ban on Meta's behavioral marketing to entire EU/EEA

On October 31, 2023, the Norwegian data protection authority (Norwegian Datatilsynet) announced that the European Data Protection Board (EDPB) had decided, in its 86th plenary meeting, to extend the ban on the processing of personal data for the purpose of behavioral marketing carried out by Meta Platforms Ireland Limited on its Facebook and Instagram platforms to the entire EU/EEA area.

The EDPB's decision follows an earlier decision from the Norwegian Datatilsynet to issue a temporary ban for three months, based on Articles 6(1)(b) and 6(1)(f) of the General Data Protection Regulation (GDPR), namely the legal bases of contract and legitimate interest, and to impose a fine of NOK 1 million (approx. $97,857) per day, starting from August 14, 2023 should Meta fail to comply. 

As a result, the EDPB has since issued its urgent binding decision to make this ban permanent and to extend it across the entire EU/EEA, and has instructed the Data Protection Commission (DPC), as the lead supervisory authority in relation to Meta, to adopt final measures to this effect within two weeks, noting that the ban will apply one week after it is notified to Meta.

Regarding Meta's proposed solution to provide users in the EU and the EEA with the option to consent as well as a subscription model from November, the Norwegian Datatilsynet expressed doubts regarding the legality of this plan, noting that Meta's proposed consent solution would require users who do not consent to behavioral marketing to pay a fee. 

In relation to the above, the EDPB has confirmed that it is currently evaluating Meta's proposal to rely on a consent-based approach as a legal basis for behavioral marketing, a decision which should provide further clarity for industry in terms of the future of behavioral advertising.  

EDPB Chair, Anu Talus, stated that, "After careful consideration, the EDPB considered it necessary to instruct the [DPC] to impose an EEA-wide processing ban, addressed to [Meta]. Already in December 2022, the EDPB Binding Decisions clarified that contract is not a suitable legal basis for the processing of personal data carried out by Meta for behavioral advertising. In addition, Meta has been found by the [DPC] to not have demonstrated compliance with the orders imposed at the end of last year. It is high time for Meta to bring its processing into compliance and to stop unlawful processing."

You can read the Norwegian Datatilsynet's press release, only available in Norwegian, here, the Danish Datatilsynet's press release, only available in Danish, here, and the EDPB's press release here.

Update: December 7, 2023

EDPB releases binding decision on Meta

On December 7, 2023, the EDPB announced the publication of its urgent binding decision. The EDPB also confirmed the issuance of the final decision the DPC on November 10, 2023.

You can read the press release here and the binding decision here.