Belgian Instagram user (represented by noyb - European Centre for Digital Rights) – €180,000,000 Fine (Ireland, 2022)

In order to access Instagram, an online social network service operated in the EU by “Meta IE”, a user was required to provide certain information and accept a series of terms and conditions (the “Terms of Use”). Under the GDPR, Instagram was obliged to have a lawful basis for the processing of personal data of its users. Article 6(1) GDPR details the lawful bases upon which such data can be processed. The company was also obliged to provide detailed information to users at the time their personal data was obtained in relation to, among others, the purposes of any data processing and the legal basis for such processing. To continue to access the Instagram platform, all users were required to accept the updated Terms of Use prior to 25 May 2018, the date the GDPR became applicable. Those existing users who were not willing to accept the new terms were advised of the option to delete their Instagram account. A Belgian Instagram user, the “data subject” and “complainant”, filed a complaint against Meta IE, the controller. The complainant was represented by “noyb – European Centre for Digital Rights”, a privacy NGO based in Austria. The complainant alleged that Meta IE’s data processing practices on the Instagram platform amounted to “forced consent”, and constituted a violation of the GDPR. The complaint, originally filed with the Belgian DPA (APD), advanced a number of grounds upon which the consent of the data subject could not be considered “freely given”. Firstly, there existed a clear imbalance of power between controller and data subject. This is likely to affect the voluntariness of the latter’s consent for the processing of personal data. The complaint alleges that, in this case, the controller undisputedly has a dominant market position in the area of social networking services and, in combination with the “lock in” and “network” effects, the data subject is left with no other realistic alternatives. Secondly, the use of the Instagram service is conditional u