What to watch out for while we wait for the official EDPB opinion on Meta

So, while we wait to see the EDPB’s Opinion on “Pay or OK”, a few things to look out for: (i) is the EDPB really going to push for a “third” option for large platforms? On what authority?

(ii) I have been observing for a while that data protection regulators are adopting increasingly anti-business practices, completely forgetting that Recital 4 of the GDPR explicitly refers to the freedom to conduct a business:
“The right to the protection of personal data is not an absolute right; it must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality. [The GDPR] respects all fundamental rights and observes the freedoms and principles recognised in the Charter as enshrined in the Treaties, in particular the respect for private and family life, home and communications, the protection of personal data, freedom of thought, conscience and religion, freedom of expression and information, **freedom to conduct a business**, the right to an effective remedy and to a fair trial, and cultural, religious and linguistic diversity.
I am eager to see how the EDPB takes that into account, especially if it starts demanding less profitable (or unprofitable) services.

(iii) It will be particularly interesting to see what arguments the EDPB develops to prohibit a practice for large online platforms, and whether it is likely to permit that same practice for smaller platforms in its subsequent Guidelines that are intended to have a broader scope. The legal reasoning will be very closely looked at, I am sure.

(iv) To any company that is being targeted by complaints or litigation: if you need assistance, reach out. There are even legal strategies for dealing with EDPB positions. Make sure that your legal team is willing to push back against regulators, because the way some courts and regulators have been acting, litigation might soon be the only option.

Edit: see some first thoughts here: https://lnkd.in/e7b-ugtB

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