"Pay or Okay" - the beginning of the end?
"PUR Abo" on derStandard.at illegal according to Austrian DPA
After the GDPR came into force, the Austrian daily newspaper "Der Standard" launched an attempt to circumvent the law: readers had to choose between their data being processed or buying a subscription. Any initial complaints were ignored by the Austrian Data Protection Authority (DPA), leading to a rapid spread of cookie paywalls in Germany and then throughout the EU. Today, the Austrian DPA has partially changed its mind.
- DPA decision on "Der Standard" (German)
- noyb complaints on "Pay or Okay"
- Summary of the decision on GDPRhub
- Resolution of the German data protection conference on "Pay or Okay"
No "blanket consent". While the DPA has only reviewed the "Pay or Okay" model to a limited extent and confirmed its general permissibility, the authority specifies that users must have the possibility to say "yes" or "no" to any specific data processing, as foreseen by the GDPR. How a "subscription obligation" is supposed to work in case of a "no" is still unclear. Recently, the German Data Protection Conference (DSK) also expressed its concerns about "Pay or Okay" regarding specific consent. As noyb has also brought complaints against major German media providers, similar decisions can be expected.
Economic issues ignored. noyb primarily focused on the horrific costs of the "Pur Subscription". While "Der Standard" only makes a few cents on advertising, readers who don't want their data to be processed, must pay a whopping € 96 per year. The profits from the "PUR subscription" are about 10 to 100 times higher than from online advertising. Anyone can do the math and see that "Der Standard" is trying to make big profits with the fundamental right to data protection. The DSB decision, however, is noticeably silent on this issue.
Max Schrems: "If we allow fundamental rights to cost 10 to 100 times as much as accepting data processing, we might as well abolish our rights altogether. It's fascinating that the DSB keeps ignoring these issue."
Implementation unclear. It is still unclear how "Der Standard" should implement a subscription model in a legally compliant manner. If users had to pay €8 for each cookie that was not placed wouldn't be economically proportionate. Charging a few cents for each cookie, on the other hands seems administratively complicated. The implementation of the decision seems rather difficult and could therefore effectively put an end to the current "Pay or Okay" model.
Max Schrems: "It is still unclear how this decision can be implemented. Are we now supposed to sign up for a single subscription for a few cents every time a cookie is placed? The ambiguity of this decision may ultimately make the 'pay or okay' model economically impossible."
Appeal by noyb and Der Standard. The decision will be fought by noyb and presumably also by "Der Standard" before the Federal Administrative Court. The final decision on "Pay or Okay" may be made by the European Court of Justice (ECJ) in the long run.
