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Personal data is 'not a tradeable commodity'

The European Data Processing Board (EDPB) has warned large online platforms that ‘consent-or-pay’ models should not be the “default way forward” for complying with data-privacy rules.

In an opinion issued earlier this month, the board stated that it would not be possible for the platforms to comply with the requirements for valid consent if they gave users only with “a binary choice between consenting to processing of personal data for behavioural advertising purposes and paying a fee”.

The opinion was the result of a request from Dutch, Norwegian, and German supervisory authorities.

Fees

“When developing the alternative to the version of the service with behavioural advertising, large online platforms should consider providing data subjects with an ‘equivalent alternative’ that does not entail the payment of a fee,” the board said.

“With respect to the requirements of the GDPR for valid consent, first of all, consent needs to be ‘freely given’. In order to avoid detriment that would exclude freely given consent, any fee imposed cannot be such as to effectively inhibit data subjects from making a free choice,” it added.

The watchdog warned platforms that personal data could not be considered “a tradeable commodity”, and that fundamental rights to data protection should not become a feature that users had to pay to enjoy.

‘Ongoing battle’

Lawyers at McCann FitzGerald described the opinion as the latest development in an ongoing battle between online platforms, data-protection authorities, and activists on the appropriate legal basis for processing personal data for behavioural advertising purposes.

“This is unlikely to represent the final word on the subject, and further enforcement activity and litigation to stress-test the approach advocated by the EDPB seems inevitable,” the firm’s note added.

“In the meantime, organisations who rely on consent as their legal basis for processing, whether for behavioural advertising or for other purpose, have further guidance from the EDPB to ponder when considering the validity of such consent,” the lawyers concluded.