The European Data Protection Board has adopted an Opinion following a request made under Article 64(2) of the GDPR by the Dutch, Norwegian and Hamburg data protection authorities.
The Opinion addresses the validity of consent to process personal data for the purposes of behavioural advertising in the context of ‘consent or pay’ models deployed by large online platforms.
The EDPB considers that, in most cases, it will not be possible for large online platforms to comply with the requirements for valid consent, if they provide users with a binary choice between consenting to processing of personal data for behavioural advertising purposes or paying a fee.
The EDPB considers that offering only a paid alternative to services which involve the processing of personal data for behavioural advertising purposes should not be the default way forward for controllers. When developing alternatives, large online platforms should consider providing individuals with an ‘equivalent alternative’ that does not involve paying a fee. If controllers do opt to charge a fee for access to the ‘equivalent alternative’, they should consider offering an additional alternative. This free alternative should be without behavioural advertising, that is, involving less or no personal data. This is a particularly important factor when assessing if consent has been validly given under the GDPR.
The EDPB stresses that obtaining consent does not absolve the controller from complying with all the principles set out in Article 5 of the GDPR, such as purpose limitation, data minimisation and fairness. In addition, large online platforms should also consider compliance with the principles of necessity and proportionality, and they are responsible for demonstrating that their processing is generally in line with the GDPR.
Concerning the requirement for consent to be freely given, the following criteria should be considered: conditionality, detriment, imbalance of power and granularity. For instance, the EDPB points out that any fee charged cannot make individuals feel compelled to consent. Controllers should assess, on a case-by-case basis, both whether a fee is appropriate at all and what amount is appropriate in the given circumstances. Large online platforms should also consider whether the decision not to consent may lead the individual to suffer negative consequences, such as exclusion from a prominent service, lack of access to professional networks, or risk of losing content or connections. The EDPB notes that negative consequences are likely to occur when large online platforms use a ‘consent or pay’ model to obtain consent for the processing.
Controllers also need to evaluate, on a case-by-case basis, whether there is an imbalance of power between the individual and the controller. The factors to be assessed include the position of the large online platforms in the market, the extent to which the individual relies on the service and the main audience of the service. The Opinion also sets out how to assess the criteria of informed, specific and unambiguous consent that large online platforms should take into account when implementing ‘consent or pay’ models.
