Pay or OK: Publishers warn against frontal attack on the press business model

The Media Association of the Free Press (MVFP) and the Federal Association of Digital Publishers and Newspaper Publishers (BDZV) are up in arms against considerations by the European Data Protection Board (EDPB) to restrict publishers' controversial pay-or-consent offers. On the occasion of a meeting between the EU data protection commissioners and stakeholders in Brussels on Monday, the associations pointed out that the mandatory third option being considered has no basis in data protection law. Furthermore, such a step would massively damage the financing of free press online: It would threaten a "frontal attack on publishers' business models".

In the third option, readers would neither have to agree to interest-based, targeted advertising including tracking (consent) nor make a payment (pay) for reading a newspaper or magazine. For the two associations, however, the admissibility of the pay-or-go models practiced by press publications throughout Europe under data protection law is beyond question.

The Federal and State Data Protection Conference declared such "pure subscription approaches" permissible in principle in 2023. Accordingly, all requirements for informed, effective consent under the General Data Protection Regulation (GDPR) must be met for tracking. The EU data protection commissioners have already issued guidelines on this.

Civil rights activists: Pay or OK incompatible with GDPR

According to the MVFP and BDZV, if the EDPB "even gives the impression that data protection law requires" a third way, the body would be "irresponsibly disregarding the clear case law" of the European Court of Justice. In addition, the publishers would be forced "to give away their editorial products –, which are created at high cost, for free or for too little economic consideration outside of hard payment barriers – ". In view of the ongoing transformation to digital editions, however, reader and advertising revenues are "indispensable in their own right".

The civil rights organization Access Now, on the other hand, wants to make it clear in a report that the central problem with these models is "their incompatibility with the GDPR" and the EU Charter of Fundamental Rights. Pay or OK makes "privacy a luxury good", the association emphasizes. Such approaches force people to "agree to invasive behavioral advertising" or to pay to exercise their right to freedom of information. Due to the EU's "fragmented and inadequate response to date", pay or consent has become the standard model for thousands of companies.

Fears of the end of "real" consent

At the heart of the criticism from civil rights activists is the adoption of the subscription model by Meta for Facebook and Instagram. "In reality, most people have no choice but to accept the use of their data if they are confronted with such a fee," complains Max Schrems, founder of the Austrian data protection organization Noyb. "Yet the vast majority have no interest in being tracked. This is a big problem." Should the EDPB legitimize Meta's approach in its planned binding opinion, companies from all sectors could follow suit. This would in turn mean the end of "real" consent. The EU Commission is currently examining Meta's payment model on the basis of the Digital Markets Act (DMA)

Noyb also sued the Hamburg data protection authority in the summer because it did not object to Spiegel's pay-or-ok model. Many relevant facts were never investigated in the case.

(dahe)