Bytesize Legal Update: Pay or OK Models for Behavioural Advertising

In the latest episode of Fieldfishers Bytesize Legal Update podcast Felicity Fisher and Megan Ward delve into the European Data Protection Board (EDPB)s recent opinion on the validity of a data subjects consent in the context of a consent or pay model and discuss what it means for large online platforms.

The EDPB's opinion focuses on models in which the option relates to consenting to the processing of personal data for behavioural advertising purposes (i.e., targeted ads) or paying a fee for the platform's service.

In January last year, the EDPB received a request from the Dutch, Norwegian and German data protection authorities to provide clarity on the legality of consent or pay models.  In particular, the referring authorities questioned whether such models can satisfy the requirements under the EU General Data Protection Regulation (GDPR) for valid, freely given consent.

The headline from the EDPB's opinion is clear - large online platforms will face challenges in demonstrating valid consent for processing an end user's data for behavioural advertising. The EDPB set a high bar for consent or pay models, but it stops short of saying that consent or pay models are incompatible with the GDPR. The emphasis is on providing end users with a real choice, rather than a binary option between consenting to use of their data for behavioural advertising or paying a fee for the service. The EDPB suggests that large online platforms should offer users an equivalent alternative, ideally free of charge, without behavioural advertising but not necessarily ad-free.

While some ambiguity remains, particularly regarding the definition of "large online platforms", the guidance underscores the need for careful consideration and design of consent mechanisms in the behavioural advertising context.

Stay tuned for more updates in our next Bytesize Legal Update.