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”Pay or ok” — Does this new paid subscription model invalidate consent?

”Pay or ok” — Does this new paid subscription model invalidate consent?

There has been much debate about the validity of consent under the GDPR as it relates to the “Pay or ok” paid subscription model on social media and other platforms and websites.


Since November 7, European users of Facebook and Instagram have had the option to pay a subscription in exchange for an ad-free experience. This paid subscription model on the social media platform Meta has been coined the “Pay or ok” model and other platforms and websites are increasingly implementing it too. The European Data Protection Board (EDPB) convened a plenary meeting on February 13, 2024, after the board’s initial discussion of this model at its December 13th plenary meeting. This highly anticipated gathering presented a critical opportunity for the board to further its discussion on significant matters impacting digital privacy and data protection across the European Union, one of which being Meta’s controversial “Pay or OK” model. This proposed “Pay or ok” business strategy involves offering EU users two options: pay a fee for ad-free services or accept targeted advertising in exchange for accessing free content. The model has sparked intense debate, with concerns being raised about the implications for user privacy and the erosion of the GDPR principle of freely given consent. The EDPB’s deliberations on this issue are expected to shape the future of online advertising and data monetization practices within the EU.


The debate regarding the “Pay or ok” model is ongoing and evolving, with GDPR regulations aiming to protect users’ right to true consent.


One of the key principles of the GDPR is that consent to the use of personal data must be freely given. This means that individuals must have a genuine choice and must not be coerced or pressured into consenting. In the context of social media platforms like Facebook and Instagram, users have been recently presented with the option to either consent to the use of their data for targeted advertising or pay a subscription fee. This approach has been criticised by some privacy advocates who argue that it does not provide users with a genuine choice. They argue that users are likely to feel pressured into consenting to the use of their data in order to avoid paying the subscription fee. However, social media platforms argue that this approach is necessary in order to cover the costs of providing their services. They also argue that users are free to choose the option that they prefer. The debate over the validity of consent in relation to the “Pay or ok” model is likely to continue. However, it is clear that the GDPR requires that consent be freely given and that users must have a genuine choice.


It will be important for the EDPB to develop guidelines that ensure fair and equal access to data protection, while also considering subscription models that may benefit both users and providers. 


Whereas some supervisory authorities in Europe such as the AEPD in Spain consider this “Pay or ok” approach legitimate, the EDPB has been called on by the data protection authorities in Norway, the Netherlands and Hamburg to consider and produce an opinion on this increasingly popular online business model. Tobias Judin, head of the international section at the Norwegian data protection authority declared; “This is a huge fork in the road. Is data protection a fundamental right for everyone, or is it a luxury reserved for the wealthy? The answer will shape the internet for years to come.” During the board ‘s initial general discussions at the December 15 plenary meeting, it was decided to prepare a request for a mandate for the development of guidelines on this subject. 


In their Guidelines 05/2020, the EDPB stated that “The controller could argue that his organisation offers data subjects genuine choice if they were able to choose between a service that includes consenting to the use of personal data for additional purposes on the one hand, and an equivalent service offered by the same controller that does not involve consenting to data use for additional purposes on the other hand”. The question now relies on the fact whether a service offered in exchange of payment can be considered as equivalent. It will be interesting to note what results from this month’s plenary meeting with regard to “Pay or ok” as well as what guidelines may be developed as the board continues to discuss this subscription model.

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