La Corte di giustizia sul caso Meta: trattamento dei dati e “prezzo” del consenso

The Court of Justice is asked by the German judges to rule on some of the most important and controversial regulatory profiles of the “data economy”, such as the conditions for the lawfulness of the processing of users’ personal data by social networks in order to finance the provision of services free of charge; the free nature of the consent given by users as a condition for access to the services of a dominant platform in a market where there are few alternatives; and the admissibility of the (incidental) finding of a breach of the GDPR by national competition authorities in assessing abuse of dominance. The paper analyzes the court’s decision and highlights its implications for contract law by pointing out, inter alia, that it embraces a concept of freedom, according to which consent given for the use of a digital service is not per se “coerced” and therefore invalid, provided that the alternative to refusing processing – that is not strictly necessary for the provision of the service – is not to refuse it altogether; but, if anything, to pay an (appropriate) fee to the platforms, as the Meta Group companies, Facebook and Instagram, have recently done in Europe, opening up new problematic scenarios for scholars to address.