The European Data Protection Board has recently issued an Opinion in response to a joint request from data protection authorities in the Netherlands, Norway, and Hamburg. This Opinion delves into the contentious issue of “consent or pay” models employed by large online platforms for behavioral advertising. The core concern lies in the validity of consent obtained under such a framework. The EDPB casts doubt on the ability of these models to garner truly informed consent. When users are presented with a binary choice – either consent to data processing for behavioral advertising or pay a fee – genuine choice becomes elusive. The EDPB emphasizes the need for a free alternative, an “equivalent alternative” devoid of behavioral advertising. This ensures that consent is not coerced through financial disincentives.

Furthermore, the EDPB underscores that obtaining consent is merely the first step. Controllers remain obligated to adhere to the principles enshrined within Article 5 of the General Data Protection Regulation. These principles include purpose limitation, data minimization, and fairness. Notably, for large online platforms, the principles of necessity and proportionality also come into play. The EDPB meticulously dissects the concept of “free consent” by examining factors like conditionality (is consent a prerequisite for service access?), detriment (are users penalized for withholding consent?), power imbalance (does the platform hold undue leverage?), and granularity (is consent specific or bundled with other permissions?). Assessing these factors is crucial in determining whether consent is truly informed and freely given.

The full press release is available here.