Social media and search engines

Meta’s Pay-or-Consent business model

In November 2023, Meta requested consumers in the EU/EEA to either subscribe to use Facebook and Instagram against a fee or to continue using Meta’s services without payment, allowing Meta to make revenue from showing them personalised ads based on their personal data (“Pay-or-Consent”). Following the launch of this new business model and an alert from the European Consumer Organisaiton (BEUC) and its member associations[1], national consumer authorities (CPC authorities), under the coordination of the European Commission and the lead of the French Directorate General for Competition, Consumer Affairs and Fraud Prevention (DGCCRF), sent a letter to Meta regarding potentially unfair practices and the use of unfair terms of service when presenting the main features of this pay-or-consent choice to consumers. 

The CPC network’s main concerns focus on whether Meta provided consumers upfront with true, clear and sufficient information that allowed them to assess which implications their decision to pay or to accept the processing of their personal data for commercial purposes would have on their rights as consumers. In addition, CPC authorities are concerned that many consumers might have been exposed to undue pressure to choose rapidly between the two models, fearing that they would instantly lose access to their accounts and their network of contacts.

Key elements of the action

CPC authorities consider that the following practices might breach the Unfair Commercial Practices Directive and the Unfair Contract Terms Directive as transposed into the internal legal order of the Member States:

• Misleading consumers by using the word “free” while Meta requires users who do not want to subscribe for using Facebook/Instagram against a fee to accept that Meta can make revenue from using their personal data to show them personalised ads;
• Requiring users to navigate through different screens in the Facebook/Instagram app or web-version and to click on hyperlinks directing them to different parts of the Terms of Service or Privacy Policy to find out how their preferences, personal data, and user-generated data will be used by Meta to show them personalised ads;
• Using imprecise terms and language, such as “your info” to refer to consumers’ “personal data” or suggesting that consumers who decide to pay will not see ads at all, while they might still see ads when engaging with content shared via Facebook or Instagram by other members of the platform;
• Pressurising consumers for whom Facebook/Instagram often constitute a significant part of their social lives and interactions to make an immediate choice, without giving them a pre-warning, sufficient time, and a real opportunity to assess how that choice might affect their contractual relationship with Meta, by not letting them access their accounts before making their choice.

This action focuses on the assessment of Meta’s practices under EU consumer law and is distinct from the ongoing investigations against the company by the Commission for a potential breach of its “Pay or Consent” model of the Digital Markets Act (DMA), the Commission’s formal request for information under the Digital Services Act (DSA), and the assessment by the Irish Data Protection Commission under the General Data Protection Regulation (GDPR). 

Meta is now invited to propose commitments to the CPC network and the Commission on how Meta ensures that its business practices and terms of service comply with EU consumer law.

WhatsApp

Following a dialogue with the CPC Network, under the lead of Swedish Consumer Agency and the Irish Competition and Consumer Protection Commission, coordinated by the European Commission, WhatsApp committed to better inform consumers on updates to its terms of service and to explain clearly how they affect users’ rights and obligations. Furthermore, WhatsApp will always provide users with the possibility to reject the updated terms of service even if it means that users cannot continue to use WhatsApp’s services.
 
WhatsApp confirmed that it has not and does not share personal data of users for advertising purposes with third parties or other Meta companies, including Facebook.
 
Overview of commitments: 

For any future policy updates, WhatsApp will:

• explain what changes it intends to make to the users’ contracts and how they could affect their rights and obligations;
• include the possibility to reject updated terms of service as prominently as the possibility to accept them;
• ensure that the notifications informing about the updates can be dismissed or the review of the updates can be delayed, as well as respect users’ choices and refrain from sending recurring notifications.

CPC authorities will monitor the implementation of the above commitments in relation to any future updates to the terms of service and company policies and will take enforcement measures in case of non-compliance.  

The CPC Network first sent a letter to WhatsApp in January 2022 following an alert by the European Consumer Organisation (BEUC) and eight of its member associations* on alleged unfair practices in the context of WhatsApp’s updates to their terms of service and privacy policy. 

WhatsApp replied to this first letter from the CPC Network in March 2022. However, after having carefully assessed WhatsApp’s submission, the CPC Network was not convinced by the company’s clarifications on the concerns raised by the Network. At the requests of the CPC Network, additional information and clarifications were provided by WhatsApp in the letters of July 2022 and January 2023 allowing the network to accept WhatsApp’s commitments. 

* APC (Romania), Consumentenbond (the Netherlands), dTest (Czech Republic), Forbrukerrådet (Norway), KEPKA (Greece), EKPIZO (Greece), S.O.S. Poprad (Slovakia) and UFC-Que choisir (France).

Google

Following a dialogue started in 2021 with the Consumer Protection Cooperation Network (CPC), coordinated by the European Commission and led by the Netherlands Authority for Consumers and Markets and the Belgian Directorate-General for Economic Inspection, Google has agreed to address issues related to their practices and introduce changes in Google Store, Google Play Store, Google Hotels and Google Flights to ensure compliance with EU consumer rules.

Overview of commitments:
In order to ensure compliance with EU consumer rules, Google has agreed to:

• Limit its power, provided in the Terms of Sales, to unilaterally cancel orders or change the price of an ordered good which was advertised at the wrong price
• Create an email adress which only the Consumer Authorities can use, to communicate directly with the company, report and request the quick removal of illegal content from Google platform.

Google Flights and Google Hotels:

• Present their business model clearly, thanks to a new tool kit included next to the booking options as well as a clearer “Learn more” section. The new disclosures helped consumers understand, when they make a booking, that they are contracting directly with the flight or hotel company and not with Google (as the possibility to book flights or hotels via Book on Google has been deprecated)
• Help consumers identify clearly the prices used as a reference to calculate a discount, when discounts are promoted on the platform 
• Clarify that they do not verify reviews on Google Hotels.
• Accept the same transparency commitments as other big accommodation platforms (Booking.com, Expedia, Airbnb) as regards the way it presents information to consumers (e.g on prices, discounts)

Google Play Store and Google Store:

• Provide consumers with information on the company (legal name , the entity address, registration and VAT numbers) in Google Store, as well as direct and effective means of communication to contact the company (e.g. a live telephone agent, the address of the EU service provider, an e-mail address) in Google Play Store and a link to the ODR platform in both stores;
• Provide clear information on their products and services which are key for consumers before the conclusion of the order (pre-contractual information) such as the existence or not, of delivery costs, the duration of the consumer’s right of withdrawal and the available legal guarantees for the repair or replacement of products which were not in conformity with the order)
• Will enable consumers to use means of payment from any EU country when purchasing from different country versions of Google Store. 
• Clarify how to browse different country versions of the Google Play Store and will inform developers about their obligations under the Geo-blocking Regulation to make their apps accessible EU-wide unless a specific exception of the Regulation can be relied upon.

As regards Google Ads and Search, the clarifications offered by Google remedied the concerns raised in the Common Position by the CPC Authorities.

However, one of Google’s practices still does not comply fully with the Geo-blocking Regulation. Google applies technical limitations for the use of the apps which would normally be available in the country where the user is temporarily located. Google justified that when users from a Member State visit another Member State they can change their Play country of residence once a year to have access to the local apps and games of the country in which they travel. However, apart from the arbitrary limits of this option (only once a year), in the event of such a change the outstanding balance will be linked only to the old Google Play country version. It is considered as an infringement to the Geo-blocking Regulation.

The CPC Network will actively monitor the implementation of these commitments, and national authorities will monitor and enforce compliance where concerns remain.

TikTok

The European Commission and the CPC authorities launched a formal dialogue with TikTok to review its commercial practices and policies, following an alert by the European Consumer Organisation (BEUC) in February 2022 about the video-sharing app’s breaches of EU consumer rights. The action was facilitated by the Commission, while the Competition and Consumer Protection Commission of Ireland and Konsumentverket, the Consumer Protection Agency of Sweden, were co-leading it on behalf of the national consumer protection authorities of all the member States.  Areas of specific concern include hidden marketing, aggressive advertising techniques targeted at children, and certain contractual terms in TikTok’s policies that could be considered misleading and confusing for consumers. 

Following dialogues with the Commission and national consumer protection authorities, TikTok has committed to align its practices with the EU rules on advertising and consumer protection. The measures taken by TikTok will make it easier for consumers to spot advertisements on their platform and will be fully implemented by the end of Q3 2022. The CPC Network will actively monitor the implementation of these commitments, in 2022 and beyond, while Data Protection Authorities will remain competent to assess compliance of the new policies and practices of the company with EU data protection rules.

CPC authorities will, in particular, monitor and assess compliance where concerns remain, such as whether there is sufficient clarity around children’s understanding of the commercial aspects of TikTok’s practices, including in relation to personalised advertising, having regard for the “5 key principles of fair advertising to children”.

Social media

As more and more consumers are targeted by fraud and scams through social media, a Joint CPC action  obtained that Facebook and Twitter bring their terms of service into conformity with European consumer law; and cooperate swiftly with CPC authorities when they report and request the removal of online illegal content.

Press release 09/04/2019

Press release 15/02/2018