Years of inactivity in βPay or OKβ cases; noyb sues German DPAs
- 2021 noyb filed complaints against the cookie paywalls of seven major German and Austrian news websites: SPIEGEL, Zeit, heise, t-online and more
- Websites ask their users to either agree to data being passed on to hundreds of tracking companies (which generates a few cents of revenue for the website) or take out a subscription (for up to 80 Eur per year). Can consent be considered βfreely givenβ if the alternative is to pay 10, 20 or 100 times the market price of your data to keep it to yourself?
- Saying "no" to tracking in this way is not only time-consuming (entering your name, address and credit card info), but you also have to pay a lot more; most users visit dozens of news sites per month and if they do not want their data to be shared by the websites it is very costly -> Legally, there is no special status for private quality media - any website, no matter if it provides recipes or world news, could force users to consent with a "pay or okay" approach and thereby circumvent the GDPR. -> problematic!
- U.S study: media outlets only get about 4% of the additional revenue from passing on data from ads
- Despite the fact that only about 3 to 10% of people want tracking for personalised advertising, these systems lead to consent rates of more than 99%
- In order to avoid finally deciding the case, the DPA of North-Rhine Westphalia has even issued a 12-page decision that it cannot decide yet
- According to a noyb analysis of EDPB statistics between 2018 and 2023, only 1.26% of cases before all German DPAs have led to a fine. The Hesse DPA, for example, has only ordered 115 corrective measures in 2024, despite receiving 3,839 complaints
- Noyb is taking both authorities to court; if the action is successful, the authorities would have to decide.
Caution:
The spread of Pay or Okay may be based on a 2019 ruling by the Austrian Data Protection Authority, which found that there is no violation of the GDPR in such a system. But that case was brought by a lay litigant and suffered from largely inaccurate factual information before the authority. In the meantime, even the EU Commission has considered that this approach is illegal in a case against Meta.