EDSA calls for real choice with consent

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These are the consequences for online platforms

'Consent or pay' option insufficient?

The user doesn't really have a choice. Give us your consent to process your data or pay now is what the big online platforms are increasingly saying. But is such consent even valid? The European Data Protection Board (EDPB) has commented on this.

"As regards the 'consent or pay' models introduced by large online platforms, the EDPB considers that in most cases it will not be possible to meet the requirements of valid consent if they only offer users the choice between consenting to the processing of personal data for behavioral advertising purposes and paying a fee," the opinion states quite clearly.

Large online platforms should therefore consider providing individuals with an "equivalent alternative" that does not involve the payment of a fee. This free alternative should be without behavioral advertising, e.g. with a form of advertising that involves the processing of less or no personal data. "This is a particularly important factor in assessing whether consent is valid under the GDPR," the EDPB states.

"Online platforms should give users a real choice when using 'consent or pay' models," summarizes the EDSA Chairwoman Anu Talus summarizes the EDSA's view. "The models we have today typically require individuals to either give away all their data or pay for it. As a result, most users consent to processing in order to use a service - and they don't understand the full implications of their choices," says Talus. 

These are the consequences of the EDPB opinion for the major online platforms

But do the major online platforms such as Meta or Google need to act immediately?

In the context of the Opinion of the European Data Protection Board (EDPB), the use of "should" generally indicates strict guidelines rather than legally binding requirements. While EDPB opinions are very influential and are considered to be authoritative guidance for the interpretation and application of the GDPR, they are not themselves enforceable laws.

In the Opinion, the EDPS uses the word "should" to indicate what he considers to be best practice for online platforms in relation to consent mechanisms. This means that it is a recommended practice and not a binding rule.

However, the recommendations are based on the legal framework of the General Data Protection Regulation, which is enforceable. This means that although the specific recommendations do not constitute legal requirements, they are derived from the legal standards that are required by law, in particular with regard to valid consent and the processing of personal data.

Put simply, if companies do not follow these recommendations, they are not necessarily in direct breach of the legal requirements. However, they run a higher risk of being classified as non-compliant with the legal standards of the GDPR in the event of inspections or enforcement measures.

The question remains as to whether, under these conditions, online platform operators within the EU will have any incentive at all to make their services available free of charge in future. For consumers, there is then a risk that in future they will have one less choice instead of one more: All that will be left of 'consent or pay' will be pay. Is this really what consumers in the EU want?

Aristotelis Zervos
Aristotelis Zervos

Lawyer and editor at 2B Advice

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