The fines imposed on Meta by the European Commission for alleged violations of the Digital Markets Act raise doubts about the consistency and effectiveness of current European policies on personal data and economic freedom. by Andrea Monti – Initially published in Italian on La Repubblica – Italian Tech
On 23 April 2025, the European Commission announced that it had fined Meta for alleged violations of the Digital Markets Act. The business model in question is ‘consent or pay’, whereby Facebook and Instagram users must choose whether to allow Meta to process their personal data for targeted advertising — in other words, to profile them — and use the platforms without having to pay a fee, or whether to refuse consent to processing and pay for the service.
According to the European Commission, Meta’s business model does not give users a real alternative that allows them to freely exercise their consent to data processing, thus violating the principle of contractual freedom enshrined in the GDPR.
Meta did not provide users with the option of accessing a service that uses less personal data but is otherwise substantially equivalent. Hence the fine.
Data as the price of the service: the Gordian knot that the Commission cannot untie (or cut)
The European Commission’s decision is flawed by a conceptual error that, at least in Italy, was corrected over twenty years ago: that of the possibility of using data as consideration for the use of a service.
Without repeating what has been written on several occasions, back in 2000, the Competition and Market Authority and the Data Protection Authority had already clarified that the ‘data in exchange for service’ model was not illegal but that it could not be classified as ‘free’ because users’ personal data were, to all intents and purposes, a quid pro quo for the service. In 2018, the Court of Cassation ruled that for fungible services — i.e. those for which alternatives exist — it was lawful to make their provision conditional on the provision of the customer’s personal data. Directive 2019/770(transposed into Italian law in the Consumer Code) expressly provides for the possibility of paying for a large number of services with one’s own data. Finally, the Italian Revenue Agency and the Milan Public Prosecutor’s Office have recently initiated proceedings against Meta, X and Linkedin on the assumption that if data is a fee for a service, then it has economic value, and if it has economic value, it must be considered revenue, and if it is considered revenue, it must be taxed.
From ‘consent or pay’ to ‘pay with data, pay with money, but —one way or another— pay’
Talking about Meta’s commercial choice in terms of ‘consent or pay’ is factually incorrect because, since data is a fee for a service, the correct description is ‘pay in data, or pay in money, but one way or another, pay’.
Put in these terms, therefore, it is reasonable to believe that the basis for the Commission’s sanction is not so solid.
A basic principle in market economy regulation is that a private company cannot be forced to provide products and services for free, and if the company in question is willing to accept a barter instead of legal tender, there are no conceptual obstacles that can prohibit this choice. On the other hand, the same argument applies to cryptocurrencies: they are not currency, they are not legal tender, they are extremely volatile, but if two private individuals agree to assign them an exchange value, so be it. Therefore, accepting payments in data is neither impossible nor illegal.
The conflict with the GDPR in the name of fundamental rights
One of the arguments used by the Commission to support Meta’s liability concerns the violation of the principle of free consent to data processing provided for in the personal data protection regulation and also referred to in the digital market regulation.
According to this principle, consent to the processing of one’s data must be given without any coercion and therefore — the Commission argues — since consent is mandatory to use Facebook and Instagram, also because the alternative offered by Meta is not on the same level, Meta is committing an offence.
This reasoning also has logical flaws.
In a contractual relationship, all consent is ‘weak’ by definition, so much so that, for instance in Italy, there are rules — those on the famous ‘double signature’ — which serve to draw the contractor’s attention to particularly onerous clauses and which render clauses that are particularly burdensome for the weaker party completely illegal.
In the case of contracts for the use of Meta’s platforms, if we look only at the part relating to the quid (service) pro quo (data), the user is ‘simply’ offered the choice of how to pay. Strictly speaking, therefore, there is no coercion of consent, especially in relation to a service that is certainly not indispensable.
It follows from these premises that it is not possible to invoke personal data protection as a legal basis for sanctioning the model that we will now call ‘pay with data or pay with money’. The point, if anything, is to intervene in the overall structure of the relationship and to sanction — where present — behaviour aimed at misleading or coercing the contractual will as a whole, not only that relating to consent to processing. In any legal system, deception in the conclusion of an agreement is already a cause for invalidating the contract, without the need to invoke data protection regulations.
The consequences of the reversal between reality and rules
There are many reasons to consider the monetisation of data unfeasible, and it is perfectly reasonable to adopt a policy that prevents such a possibility.
For example, as demonstrated by the ongoing debate on the information bulimia of companies that build models for AI, monetising data implies reducing or eliminating the protection of those rights that can be called into question through data, but this is not the only issue on the table. More generally, in fact, the European institutions’ approach based on monetary penalties has allowed the idea to take hold that rights have a price: just pay the penalty, and anything becomes possible. It would have been different if, instead of limiting themselves to this, penalties such as the suspension or prohibition of services had been provided for. These would have been much more painful and, therefore, much more dissuasive.
The urgency of a pragmatic choice
On the other hand, if it is true that reality determines law and not the other way around — the speed of light is not decided by law — we must acknowledge that the market has already moved beyond this debate for decades and that the monetisation of data is now an indisputable fact.
Winston Churchill seems to have expressed this concept: if there is a person with a cigar under a no smoking sign, that person must put out the cigar. If there are fifty people smoking under the sign, the sign must be removed.
Metaphors aside, there was a time when all this could have been avoided, but that time has passed and will not return. Therefore, it does not make much sense to continue fighting what has become a rearguard battle that cannot be won and, even more so, condemns the EU to technological irrelevance in a sector firmly dominated by the United States.