Paying to avoid cookies is valid, but the price must be reasonable

Cnil takes its first steps in assessing the legitimacy of the cookie walls that appear at the entrance to certain websites. The use of “walls” is not illegal, but we must remain reasonable about the price of the alternative.

The future of access to information online may one day come up with the question: Would you rather accept tracking cookies and site access for free or would you like to refuse them and pay a small amount in return? In any case, in this direction, the French network has been heading, with the advent of “cookie walls”, for several months.

You have already passed through these “cookie walls”. This is a window that appears overlayed when you visit a site, and asks you to make your choice: Would you prefer free access, but subject to advertising cookies, or access without these tracking, for a few euros, and for a variable period (generally one month)?

Example of a “cookie wall”. // Source: cat

Sites like Allociné or JeuxVidé, which belong to the Webedia group, have been on the decline since 2021. This new approach has raised legitimate questions: Is this way of doing things legal? Is freedom of consent questioned with a choice that might seem directed? In short, is the practice GDPR compliant?

The case was settled in 2020 by a decision of the State Council. ” Cnil cannot legally block cookie walls in its guidelines “, fired the highest judicial authority in the French administrative order. In this case, Cnil had” Beyond what they can legally do By seeking a global ban on ‘tracking walls’.

However, just because there are no general bans on cookie walls does not mean that they are allowed to do anything with them. It is precisely at this level that the National Commission on Computing and Liberties intends to act, by defining evaluation criteria in order to determine whether such and such a cookie wall is legal or if it proves to be excessive.

Sites should not abuse their sites with excessive pricing

In a note published on May 16, the Personal Data Protection Authority shared “ First evaluation criteria These pointers are intended to apply to everyone, but with a case-by-case consideration. In doing so, Cnil cannot define absolutely a fixed amount to be paid as an alternative to tracking cookies.

In other words, it can be a legitimate site to make a payment of two euros to access its content for one month without advertising cookies, while another can be completely legitimate with a bill of one or five euros or why not ten euros. In fact, Cnil notes that the paid alternative should be based on ” reasonable price “.

Can we objectively evaluate what is a reasonable price? In this regard, Cnil declares that such an amount is unlikely to deprive Internet users of a real choice. In fact, if the price is too high, Internet users will mechanically be inclined to accept cookies, and in doing so, the freedom of consent defined by the GDPR will be distorted.

cookie Monster
Internet users find themselves in an awkward situation: do they accept cookies or agree to pay? // Source: Muppet Show

This analysis can only be done on a case-by-case basis. So Cnil asks to be the site manager. Able to justify the reasonable nature of the monetary consideration offered For this, the manager should be able to disclose how he arrived at this amount, and why it is only valid for a period of time. It is a matter of transparency.

This price criterion was not the only one held by CNIL, but it is certainly central, since it is at the heart of the mechanism that should lead to two potential paths to the public. Other factors are also mentioned. For example, can tracking cookies continue to be placed, even if paid access is chosen and cookies are rejected?

The use of cookie walls is relatively new and its framework remains volatile – thus Cnil says it is waiting for potential intervention by the European Court of Justice, which will set up guidelines. Meanwhile, Cnil is setting up her own company. Because according to authority complaints accumulate. Just like the audience doesn’t understand.

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Source: Catherine Sharman

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