Brussels, Belgium, 18 July 2024 - IAB Europe, Alliance Digitale, BVDW, IAB Ireland, IAB Italia, IAB Polska, IAB Spain, IAB Sweden and SPIR have submitted to the European Data Protection Board (EDPB) a position paper outlining key concerns and recommendations in connection to its Opinion 08/2024 related to the use of ‘Consent or Pay’ models by “large online platforms”, and to the Board’s upcoming draft Guidelines intended to have a broader scope.
The undersigned associations are concerned that the EDPB’s lack of consultation on this structuring topic and its disregard for stakeholders’ input thus far has resulted in the Board adopting a position based on a fundamentally flawed understanding of the digital advertising industry, which will ultimately undermine both the sustainability of some digital services and users’ ability to access diverse sets of services and content online for free.
The position paper argues that the EDPB's Opinion 08/2024 fails to balance the right to data protection with the freedom to conduct business. In particular, the Opinion attempts to dictate how companies structure their business models by examining pricing practices and by requiring the provision of a “free alternative without behavioural advertising”, which is at odds with the established case law of the Court of Justice of the European Union (CJEU) in Case C-252/21, and may not be commercially viable for many online services.
Moreover, the Opinion misrepresents the ‘Consent or Pay’ model as rendering data protection rights conditional on payment and erroneously portrays personalised advertising as generally unlawful. This does not only depart from existing case law and national guidelines, but also diverges from the intention of the EU co-legislators that have expressly chosen to preserve personalised advertising in the EU legal framework.
Finally, the concept of “large online platforms” as set out by the EDPB has no grounding in the GDPR, and is not based on any objective and measurable factors, which creates confusion and uncertainty as to the scope of application of the Opinion.
Recommendations
The undersigned associations recommend the EDPB to revise and align the Opinion 08/2024 with the authoritative CJEU judgment in Case C-252/21, by limiting its assessment to companies that are in a situation of power imbalance with their users and by recognising the legality of providing users with a choice between consenting and paying a fee for accessing their services in such a situation.
The Opinion and subsequent draft Guidelines should also abstain from interfering with the business models chosen by companies to finance their services, by making explicit that Data Protection Authorities cannot independently examine pricing practices or factor the provision of a “free alternative without behavioural advertising” to assess the validity of consent.
Additionally, it is essential for the draft Guidelines to build on the interpretative guidance and recommendations already issued by national Data Protection Authorities, without conflating the data protection principles set out by the GDPR with concepts borrowed from other EU legal instruments that have been established to ensure a fair and competitive digital economy.
The position paper can be found here. For more information, please contact Ninon Vagner, Privacy Director, IAB Europe - vagner@iabeurope.eu / Helen Mussard, CMO, IAB Europe - mussard@iabeurope.eu
