The Dutch, Norwegian and German (Hamburg) regulators asked the European Data Protection Board (EDPB) for guidance on whether large online platforms can implement ‘consent or pay’ models for behavioural advertising based on valid and freely given consent. This was prompted by Meta’s introduction of a subscription model in October 2023, where users were given the option to either pay a monthly fee to use Meta’s services without ads, or to use its services for free while seeing ads, a direct example of a consent or pay model.
The EDPB’s decision on this issue is that if large online platforms only give customers the option of paying a fee or consenting to the processing of personal data for behavioural advertising, they will not be seen as compliant under the GDPR. A ‘consent or pay’ model would result in forced consent and put consumers who opt out at a disadvantage. Under the GDPR, valid consent must be ‘freely given’, and users should not feel compelled to consent to data processing in order to use services of an online platform.
In cases where the use of these large online platforms is crucial for social participation or access to professional networks, excluding individuals who do not consent from the service will be seen as detrimental and, under GDPR, not in line with its principles of necessity and proportionality, purpose limitation, data minimisation and fairness.
EDPB’s recommendations for compliance
As a result, to meet GDPR standards, the EDPB is urging platforms to provide a genuine ‘equivalent alternative’ that doesn’t involve additional costs. This means a possible third option on a consent layer that does not charge the user, but still allows them to use the service of these large online platforms.
Implementation of a third consent option
A possible solution could, for example, consist of three buttons on the cookie banner: “Accept to all,” which would indicate that you freely consent to the processing of behavioral advertising; “Accept without Behavioural Advertising,” which would indicate that you reject the use of behavioral advertising but should still be able to use the service up to a certain limit; and finally, “Pay,” which would indicate that you do not agree to the processing of behavioral advertising and that you would like to pay in exchange for the possibility of using the service with more features than the latter option.
consentmanager users can add your custom “Accept without Behavorial Advertising” button to the first layer of your cookie button by following our technical guide here on our help section here.
These choices can guarantee that users have more options for providing consent than just accepting all conditions or paying a fee.
If you have any further questions, please feel free to contact us at mail@consentmanager.net.
