Comment by tzs
5 days ago
GDPR does not purport to outlaw targeted advertising. It just purports to require that the target consent.
In pretty much every other area of law in most of the world (including Europe) consent can be bought--the party requesting consent gives the consenter something in exchange for consent, and will not give that thing unless consent is given.
But under the rulings from some regulators that doesn't work for GDPR. Consent is apparently only considered to be freely given if withholding it would not result in any detriment such as not getting the same level of service or having to pay money for service.
If regulators want to outlaw targeted advertising it would be a lot better if they just did that, instead of making consent in GDPR work differently from how it has worked for pretty much everything else pretty much everywhere for centuries.
That's not entirely fair. The concept of duress exists and is always at odds with consent in a transactional setting. The issue is where to draw the boundary between "you freely chose to do business" and "you were coerced into accepting unfavorable terms".
I'm inclined to think that "pay or be tracked" is usually the former. The issue was never that I shouldn't have to pay but rather that I wasn't given the choice in the first place.
That would probably work if it wasn't already such an established business model. The grocery store hires a bouncer to not let me in unless he can take a picture of my ID? Fine... I'll go across the street.
But since it already is established that the Internet works this way, all grocery stores in town are already doing this. I might not want to but I still have to. Moreover, it's been firmly impressed upon everyone that they have to show ID to enter a grocery store, so if I created a new one that didn't, people would just continue going to their closest one anyway. To improve this situation, something more drastic than free competition is needed (if that could work, it already would have).
In this analogy the grocery stores pretty much all started offering the option to pay a cover charge and not have your ID checked. They believed this complied with the new laws but the regulator is making noises that this isn't good enough - that they have to make ID checks optional even for customers that won't pay.
So the question is, does charging you to not have your ID checked count as coercion or is it a voluntary choice? Or alternatively, does it have a detrimental effect on society at large? Is it somehow unfair to the individual? I'd tend to think that the answer to those questions would depend a lot on motivations - the funding model, the size of the fee, and how much money they make if they track you.
In the case of a newspaper they have to make money somehow. If readers aren't willing to pay I don't immediately see how offering a free tier that has advertisements with tracking is detrimental to society or unfair to the individual.
If regulators want to outlaw targeted advertising it would be a lot better if they just did that
Exactly. As it is now they're practically encouraging publishers to use dark patterns to trick users into "agreeing" to tracking.
GDPR Art. 7 section 4:
> When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract.
Don't blame the regulators, it's pretty clear that "paying" with consent is a no-go from the text itself.