On 17 April 2024 the EDPB issued an opinion on the use of “consent or pay” models. These models essentially give users a choice between consenting to targeted advertising or paying for an ad-free version of the service.
The Chair of the EDPB said that large online platforms (the opinion was limited to these types of platforms) need to give users “a real choice when employing consent or pay models.”
The EDPB has advised that “in most cases it will not be possible for large online platforms to comply with the requirements for valid consent if they confront users only with a binary choice between consenting to processing of personal data for behavioural advertising purposes and paying a fee.” Offering (only) a paid alternative should not be the default way forwards. Controllers will need to assess if a fee is appropriate at all.
The EDPB went on to state that these platforms should offer a fee free alternative to behavioural advertising but where they offer the “consent or pay” model they “should consider also offering a further alternative, free of charge, without behavioural advertising, e.g. with a form of advertising involving the processing of less (or no) personal data.” The EDPB suggests this will help to avoid consent being viewed as conditional.
The EDPB recognised that some of these platforms play a “prominent or decisive role” in social life/professional networks and that this plays into whether consent is freely given (as refusing to pay the fee would mean exclusion from a significant area of social/professional life). The level of the fee was also called out as a factor in assessing if the consent is freely given.
The EDPB warned that consent needs to be granular, the purposes for processing should not be bundled and that platforms should not use of deceptive patterns to encourage consent.
The need for informed consent was also highlighted. The EDPB stated that individuals must have “full and clear comprehension of the value, the scope and the consequences of their possible choices, taking into account the complexity of processing activities related to behavioural advertising.”
This is an interesting exploration of consent and although it applies to large platforms, those considering using “pay or consent” models would be advised to have a read, just to understand the EDPB’s thinking.
The full text of the opinion can be found here
