Meta and the rights’commodification problem

The Social Network giant, after dropping NFT, is facing judicial actions in the Netherlands and Italy regarding privacy issues. At stake are Big Tech industrial model and the idea that rights are good that can be traded by Andrea Monti – initially published in Italian by

On 13 March 2023, Meta announced plans to stop supporting NFT on Facebook and Instagram. The news comes after the sinking of Diem, the “proprietary” cryptoasset  supposed to be the “currency” of the social ecosystem, was announced about a year ago. At about the same time, its Irish subsidiary will have to deal with the consequences of the decision taken by a Dutch court on 15 March 2023, which found that there was no legal basis for advertising based on the behavioural profiling of users. In addition, since February 2023, the Public Prosecutor’s Office in Milan has been investigating an alleged breach of VAT rules because providing services in exchange for user data is not a free transaction but has an economic value and should therefore be taxed. Even the Metaverse project is not doing well: investors are not enthusiastic — Bloomberg calls it a ‘moonshot’ — and the financial losses are substantial

While these events may raise eyebrows, they are not shocking. After all, they could well be cards from the ‘unexpected’ or ‘probability’ deck in the Big Tech version of Monopoly. A company that relies on innovation to grow, primarily when it operates in highly complex environments, is constantly ‘betting’ on disruptive projects. Therefore, in the name of the adage ‘better to ask forgiveness than permission‘, it must consider the need to adopt unconventional approaches or ‘force the hand’. Sometimes you win, sometimes you don’t. But what matters is who holds the chips when the last hand is called and get up from the table.

However, Meta and the other components of Big Tech are not ‘normal’ companies because, in the market of the dematerialisation of reality and human relations, they are capable of triggering chain reactions in almost real-time, with unpredictable and uncontrollable large-scale consequences, not only in the economic sphere but also on a political and social level.

Simply announcing having found the Next Big Thing (without even owning a prototype) creates “me too” products and services and the associated supply chain that do not necessarily stand the test of time. On a less global scale, they can lead initiatives that benefit those selling shovels to gold diggers. And it doesn’t matter if all that comes out of the mine is pyrite. The hysteria generated by blockchain and NFT is the latest —but certainly not the last— example of this phenomenon. Now that Meta has extricated itself from these two spheres, the only remaining question is when (‘when’, not ‘if’) what has been pretextually presented as revolutions by unscrupulous marketing strategies will be definitively dismissed as good ideas misapplied or kept alive on a scale incompatible with their actual usefulness. In the meantime, however, the rest of the (Western) world has been wasting time, money and resources pursuing a future that was only imagined and poorly perceived.

A similar lack of perspective afflicts the criticism of Big Tech ‘in the name of privacy’. This is summed up in the Dutch court’s decision, with paradoxical effects. In short, the judges considered that Facebook users had not been sufficiently informed about what was being done with their personal data and that the processing of information for advertising purposes was not a ‘necessary’ element of the delivery of the service, which consists of providing a ‘profile’ to connect with other people. Therefore, in the opinion of the judges, there is no legal basis for the use of the data in question, and, in the opinion of the initiators of the lawsuit, the users have a right to compensation.

Given this ruling, it will be interesting to see on what basis the users will claim compensation. If they do have a claim for damages, they will have to prove the existence of damages and their amount, which will not always be easy. If, on the other hand, they claim to be compensated because their data have an economic value (and this is where the issue overlaps with the Milan investigation), the question arises of the evaluation criteria of personal data. This will necessarily have to be calculated on a case-by-case basis. It will also be challenging to make the calculation here since it would be necessary to establish a criterion for distinguishing between individuals. Indeed, from such a perspective, it is clear that the data of individuals with greater economic capacity or propensity to purchase are of more excellent value than those of more prudent or less affluent individuals. This could lead to unacceptably and paradoxically discriminatory effects, which is precisely what the proposed legal action aims to combat.

Whatever option the Dutch users choose to pursue their claims, it is clear that the premise of the case against Meta is socially questionable. If everything boils down to ‘informing users’, ‘obtaining consent’, and, at the limit, ‘paying for the data’ or the right to process it, the game of fundamental rights is lost from the start.

Like other exponents of Big Tech, Meta (nomen, omen) has gone beyond simple profiling based on interests, the hardware used by the user, the places, times and duration of connections, and the analysis of the content produced and consulted. These are now remnants of the past, left only to legislators and independent authorities who struggle to understand the present but claim to regulate it based on their partial perception of reality.

The behavioural advertising referred to in the Dutch judgement is, in fact, much more than the simple and simplistic definition adopted, for example, by the Office of the Privacy Commissioner of Canada, which defines it as ‘the placement of advertisements based on the tracking of data collected across multiple unrelated websites’. Nudging — widely used, for example, by the British government during the acute phase of the pandemic — and the other tools developed by behavioural economics go far beyond the dangers myopically perceived by ‘surveillance capitalism’.

What should be worrying is not the ‘tracking’ of users but the ability to influence their behaviour as a whole rather than their individual choices. It matters little what the first and last name of the user behind the computer monitor to which an IP is assigned is. What matters is whether he is always using it to influence the way he acts, not the way he thinks. At this stage, ‘privacy’ and personal data protection rules are not even extras because they legally presuppose that the platform in question has identified or can identify the user; otherwise, the protection mechanisms cannot come into play. The national data protection authorities have realised this and, like the Italian one, are forcing the interpretation of the law to fill the regulatory ‘hole’. Still, the patch is no better than the hole.

The events surrounding Meta have a much broader significance than a simple (Pyrrhic) victory in a trial or investigation.

On the one hand, they highlight the growing criticality of the industrial model based on the immateriality of products and services and raise the problem of the long-term sustainability of strategies based on ‘throwing a stone in the pond’ and seeing what effect it has. On the other hand, they confirm the trend towards the ‘commodification’ of rights, i.e. their transformation from inviolable prerogatives of the individual to ‘objects’ that can be traded.

Of the two critical issues, the second is the most worrying because when rights become marketable commodities, it means that they can be taken away from people and accumulated in the hands of a small number of private individuals who, as such, are accountable only to themselves and acquire the power to decide what a right is, what its content is and to whom it can be attributed.

This is the paradox created by the illusion of digital rights, which, intending to protect the individual from the encroachment of public and private powers, pushes him or her into a cage that may be gilded but is still a place with bars on its doors and windows, and whose keys to freedom are in the hands of everyone except the unwitting recluse.

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