Facebook Faces Fresh Criticism Over Ad Targeting of Sensitive Interests
Is Facebook trampling over laws that regulate the processing of sensitive categories of personal data by failing to ask people for their explicit consent before it makes sensitive inferences about their sex life, religion or political beliefs? Or is the company merely treading uncomfortably and unethically close to the line of the law?
An investigation by the Guardian and the Danish Broadcasting Corporation has found that Facebook’s platform allows advertisers to target users based on interests related to political beliefs, sexuality and religion — all categories that are marked out as sensitive information under current European data protection law.
And indeed under the incoming GDPR, which will apply across the bloc from May 25.
The joint investigation found Facebook’s platform had made sensitive inferences about users — allowing advertisers to target people based on inferred interests including communism, social democrats, Hinduism and Christianity. All of which would be classed as sensitive personal data under EU rules.
And while the platform offers some constraints on how advertisers can target people against sensitive interests — not allowing advertisers to exclude users based on a specific sensitive interest, for example (Facebook having previously run into trouble in the US for enabling discrimination via ethnic affinity-based targeting) — such controls are beside the point if you take the view that Facebook is legally required to ask for a user’s explicit consent to processing this kind of sensitive data up front, before making any inferences about a person.
Indeed, it’s very unlikely that any ad platform can put people into buckets with sensitive labels like ‘interested in social democrat issues’ or ‘likes communist pages’ or ‘attends gay events’ without asking them to let it do so first.
Facebook argues otherwise, of course — claiming that the information it gathers about people’s affinities/interests, even when they entail sensitive categories of information such as sexuality and religion, is not personal data.
In a response statement to the media investigation, a Facebook spokesperson said:
Like other Internet companies, Facebook shows ads based on topics we think people might be interested in, but without using sensitive personal data. This means that someone could have an ad interest listed as ‘Gay Pride’ because they have liked a Pride associated Page or clicked a Pride ad, but it does not reflect any personal characteristics such as gender or sexuality. People are able to manage their Ad Preferences tool, which clearly explains how advertising works on Facebook and provides a way to tell us if you want to see ads based on specific interests or not. When interests are removed, we show people the list of removed interests so that they have a record they can access, but these interests are no longer used for ads. Our advertising complies with relevant EU law and, like other companies, we are preparing for the GDPR to ensure we are compliant when it comes into force.
Facebook is not the only online people profiler, of course, but it’s a prime target for strategic litigation both because of its massive size and reach (and the resulting power over web users flowing from a dominant position in an attention-dominating category), but also on account of its nose-thumbing attitude to compliance with EU regulations thus far.
The company has faced a number of challenges and sanctions under existing EU privacy law — though for its operations outside the US it typically refuses to recognize any legal jurisdiction except corporate-friendly Ireland, where its international HQ is based.