On Wednesday, the General Court of the European Union issued a key judgment in the dispute between the American technology company Meta and the European Commission.
The CJEU confirmed the EC's decision of September 5, 2023, according to which Messenger is a “basic platform service” and Meta is its “access gatekeeper”.
The company, which also owns Facebook and Instagram, did not convince the court that it is not a powerful digital service operator. This means specific obligations and restrictions on the use of Messenger data by Meta. What is explained by Maciej Gawroński, legal advisor, partner at the law firm Gawroński & Partners.
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Who is an access gatekeeper?
For the European Commission to recognize a company as a gatekeeper, it must provide a large number of business users with access points that enable them to reach users anywhere in the EU and across markets. This status results, among other things, from the EU's Digital Markets Act (DMA) – the Community's flagship regulation that aims to put an end to the dominance of the largest digital platforms on the European market by subjecting companies with huge reach and influence to special restrictions.
— In practice, “access gatekeeper” means a powerful operator of a digital service, a platform that almost everyone uses. Therefore, the operator has or may have extensive knowledge about users. And as Ben Parker, Spider-Man's uncle, said when he was dying, “With great power comes great responsibility.” In the EU, we interpret this as an obligation to remain neutral and not to use our advantage, which is different than in the USA, explains Maciej Gawroński.
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What limitations does Meta have as an access gatekeeper?
What does this mean in practice? — Meta, as an access gatekeeper, cannot use the data we exchange in correspondence on Messenger for advertising purposes (5.2.a. DMA), nor combine this data with data from its own or other services, e.g. Facebook (5.2.b. DMA), unless we have given our personal consent to such actions – explains attorney Gawroński.
The user must consent to the processing of call data for various purposes. Mec. Gawroński, however, warns that Meta cannot ask for such consent more than once a year (5.2, paragraphs 2 and 3 of the DMA).
However, if Meta does not have such consent from us, we can easily talk about anything on Messenger and not be afraid of being “spagged” with advertising.
For example, based on conversations and photos, Meta can determine that someone has a cat or dog, is planning a vacation, or is looking for specific products. – However, on this basis it cannot send advertisements, e.g. for dog food, gluten-free products, shoes, cars or offers of travel insurance – explains attorney Gawroński.
Meta should also not share information resulting from correspondence on Messenger with other entities, or use it to target ads purchased on Facebook to a given user.
— In short, Meta “should not track us” and then use the information obtained in this way to direct ads or other suggestions to us – explains attorney Gawroński.
Marketplace is not Messenger
However, the EU General Court found that The Marketplace advertising platform is not such a “basic platform service”. This means that Meta is not the gatekeeper of access to Marketplace data.
— In short, Meta has no duties as guardian of the galaxy here. If someone is looking for something there, they must take into account that they will be “chased” by advertisements – says attorney Gawroński.
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So if someone is looking for a car, a bike, a phone, a desk on Facebook Marketplace, they must take into account that they will be flooded with similar ads on the Internet.
