On April 17, 2024, the EDPB published its Opinion on the “Consent or Pay” model in the context of large online platforms under Art. 64(2) of the GDPR.
Although a consistent EDPB position was desirable to ensure harmonisation across the European Union, IAB Europe has grave reservations the Opinion published last week is at odds with the prevailing jurisprudence of the CJEU and highly mischaracterizes both the ‘consent or pay’ model and personalised advertising.
As a result, the Opinion is likely to create the opposite effect, namely increasing legal uncertainty for many businesses beyond large online platforms and may ultimately undermine the ability for users to access diverse sets of services and content online for free.
First, the EDPB dedicates large parts of the Opinion to make overly abstract assumptions about the underlying functioning of personalised advertising, suggesting that this form of advertising would be inherently irreconcilable with the GDPR principles of data minimisation and fairness.
Those allegations are not demonstrated or substantiated in any way, yet they are used to misrepresent the ‘consent or pay’ model as transforming data protection rights into “a feature that data subjects have to pay to enjoy, or a premium feature reserved for the wealthy or the well-off.” This cannot be followed, as the GDPR precludes unlawful data processing irrespective of the legal basis of processing, including consent, and provides Supervisory Authorities with extensive investigative and corrective powers to supervise the correct application of the GDPR.
Second, the EDPB introduces the provision of a third option, namely a “free alternative without behavioural advertising” as a quasi-mandatory condition for obtaining valid consent without adducing any empirical research or other evidence to justify why companies should develop another version of their service free of charge and funded by a different form of advertising such as contextual.
It must be stressed that contextual advertising is not always a viable monetisation alternative. Yet, no company can be required to provide their product and services at a loss. Moreover such a requirement is not supported by the GDPR which is not intended to interfere with the business models chosen by companies. This approach blankly ignores the required balance between the right to data protection and the freedom to conduct business, neither of which is absolute, as clearly provided by Recital 4 of the GDPR.
It is concerning to see the EDPB prescribing, by means of a soft-law instrument, an unprecedented interpretation that is neither enshrined by the law nor supported by the established position of the CJEU, based on fundamentally flawed assumptions of the digital advertising industry and simply overlooking stakeholders’ commercial realities.
As the EDPB intends to subsequently develop Guidelines pertaining to the ‘Consent or Pay’ model with a broader scope, IAB Europe reiterates its earlier statement and emphasises the importance to initiate a public consultation to ensure the development of sound policy guidance that takes account of all pertinent stakeholders’ concerns and interests.
