Has Consent or Pay had its day?

At the request of the Personal Data Authority (AP) and others, the European Data Protection Board (EDPB) published an opinion (.pdf) on April 17, 2024.

The opinion addresses whether and under what circumstances and conditions the so-called “Consent or Pay” models can be adopted by large online platforms. In fact, in many cases there is a binary choice. The customer can buy products or use them for free in exchange for permission to process their personal data.
This may involve placing pixels that allow the customer’s Internet usage to be
transmitted to the Internet company. This enables highly targeted advertising.

No fair choice

The EDPB first notes that of course the data controller must respect all the rules of the General Data Protection Regulation (GDPR). And that in the majority of cases, the processing of personal data is conditioned on the consent obtained from the data subject. But is it a fair choice when users have to choose between a paid subscription without being tracked and a membership that does not require them to pay, but does: the ‘consent or pay’ model. Users are actually forced to choose to ‘pay’ with their personal data. Especially if the price for a paid subscription is high. Such ‘consent’ is then not equivalent to free consent as required by the AVG.

The EDPB further highlights the imbalance of power that may be present between the platform on the one hand and the individual on the other. Especially if the platform is the dominant medium in that segment. Saying goodbye to such a network means that the interaction between persons also belongs to the past, putting the person concerned at a disadvantage, since the digitization of society means that there is a digital world to an increasing degree. Another network then does not bring a solution. There are network effects and containment effects.

Third option

The tech companies behind the online platforms must therefore offer a third option, the “Free alternative Without Behavioural Advertising.” In other words, this option must be free. And in doing so, the user must be able to be tracked only to a limited extent. This option must be clear and effortless. The ads that users then see are then not based on their behavior across the Internet but are contextual, for example. That means the ads match the content someone is viewing on the platform.

Large tech companies must comply with this practice. If companies do not, they must prove that their practices still comply with privacy laws.

Advice

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